JUDGMENT Rohit B. Deo, J. (Oral) - The appellant is aggrieved by the judgment and order dated 18.12.2008 rendered by the learned Judicial Magistrate First Class, Tumsar in Summary Criminal Complaint Case 408/2006, by and under which the respondents 1 and 2 are acquitted of offence punishable under section 138 of the Negotiable Instruments Act, 1881 ("Act" for short). 2. The appellant (hereinafter referred to as the "complainant") instituted proceedings under Section 138 of the Act, the cause title of which reads thus : "Shirishkumar s/o Shobharam Lohabare, Aged about 28 years, Occupation - Nil, R/o Shriram Nagar, Tumsar..... Complainant vs. Bhandara Zilla Bahuuddeshiya Apang Vikas Sanstha, Nakadongari, Reg. No.109/1997 through its Director, 1) Madhav s/o Ramkrishna Drugkar, Aged about 55 years, Occupation - President of Bhandara Zilla Bahuuddeshiya Apang Vikas Sanstha Nakadongari, Reg. No.109/1997, R/o Durga Colony, Tumsar, Also c/o Shiv Medicals, Opp. Ram Mandir, Tumsar, District Bhandara. .. Accused" The cause title would suggest that the accused is Bhandara Zilla Bahuuddeshiya Apang Vikas Sanstha which is arrayed through Shri Mahadev Drugkar and Shri Yuvraj Bhutange, the President and Secretary respectively of the society. The cause title would suggest that Shri Mahadev Drugkar and Shri Yuvraj Bhutange are not impleaded in personal capacity and the only accused arrayed is the society. 3. Paragraph 1 of the complaint, however, proceeds on the premise that two accused are arrayed namely Shri Mahadev Drugkar and Shri Yuvraj Bhutange and they are described as the President and the Secretary of the society who are responsible for the managing of the affairs and business of the society. In paragraph 3, it is averred that accused 1 and 2 demanded an amount of Rs. 5,00,000/- from the complainant to make him permanent on the post of workshop Superintendent. Paragraph 4 of the complaint avers that the complainant paid Rs. 50,000/- in cash to accused 1 on 01.8.2005 and deposited further amount of Rs. 50,000/- by cheque in the account of the society. In paragraph 5, it is averred that the complainant refused to pay the balance amount of 4,00,000/and demanded refund of Rs. 1,00,000/- paid on 01.8.2005. Accused 1 and 2 agreed to pay the said amount on the condition that the complainant would have to sign blank receipts and the complainant accordingly signed two blank receipts. Accused 1 and 2 handed over two cheques to the complainant. The first cheque bearing 028295 for Rs. 1,00,000/- paid on 01.8.2005. Accused 1 and 2 agreed to pay the said amount on the condition that the complainant would have to sign blank receipts and the complainant accordingly signed two blank receipts. Accused 1 and 2 handed over two cheques to the complainant. The first cheque bearing 028295 for Rs. 50,000/- was drawn on the personal account of accused 1 and the same was duly encashed. However, the second cheque bearing number 010969 for Rs. 50,000/- dated 21.9.2005 was drawn against the account of the society and was signed by accused 1. The second cheque was dishonoured and the return memo dated 03.3.2006 records the reason "drawer''s signature incomplete, joint signature required" and "funds insufficient". 4. In paragraph 7, the averment is that accused 1 and 2 were jointly operating the account of the sanstha and they were obligated to issue cheque with proper signatures and to maintain sufficient funds in the account. In paragraphs 8 and 9, it is averred that the statutory notice was issued, the accused did not comply and therefore, the proceedings are being instituted. 5. Section 138 of the Act reads thus : "138. In paragraphs 8 and 9, it is averred that the statutory notice was issued, the accused did not comply and therefore, the proceedings are being instituted. 5. Section 138 of the Act reads thus : "138. Dishonour of cheque for insufficiency, etc., of funds in the account Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for (a term which may extend to two years), or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless (a)the cheque has been, presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) the payee or the holder in due course of the cheque as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer of the cheque, (within thirty days) of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Explanation. For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability." 6. It is indubitably that the cheque was issued against the account maintained by the society. Explanation. For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability." 6. It is indubitably that the cheque was issued against the account maintained by the society. The account of the society was, according to the complainant, operated by Shri Mahadev Drugkar and Shri Yuvraj Bhutange and the complaint is predicated on the assertion that these two persons who are the President and the Secretary of the society ought to have ensured that the cheque drawn on the account of the society is properly signed. 7. It is a settled position of law that Section 141 of the Act, which by a deeming fiction makes certain persons vicariously liable for the act of others, which is a departure from the normal law, is attracted only if the company or the body corporate or association of individual is arrayed as an accused. In Anita Hada vs. Godfather Travels and Tours Private Limited reported in (2012) 5 SCC 661 , the Hon''ble Apex Court has held that the prosecution against Director or Authorised Signatory of cheque, without arraigning of company as accused is not maintainable. The cause title of the complaint does describe the accused as Bhandara Zilla Bahuuddeshiya Apang Vikas Sanstha through (1) Shri Mahadev Drugkar and (2) Shri Yuvraj Bhutange. Going by the cause title, the impression gathered is that the accused is a society which is sued or prosecuted through its President and Secretary, which would imply that Shri Mahadev Drugkar and Shri Yuvraj Bhutange are not arrayed as accused in individual capacity so as to attract the vicarious liability under section 141 of the NI Act. On the other hand, if the averments in the complaint are perused, Shri Mahadev Drugkar and Shri Yuvraj Bhutange are referred to as accused 1 and 2 which would imply that the society is not arrayed as an accused and only its President and Secretary are arrayed as accused in their capacity as the authorised signatories. In either of the situations the complaint was clearly not maintainable. If the averments in the complaint are taken at face value, the prosecution is against two accused namely Shri Mahadev Drugkar and Shri Yuvraj Bhutange and the society is not an accused. In either of the situations the complaint was clearly not maintainable. If the averments in the complaint are taken at face value, the prosecution is against two accused namely Shri Mahadev Drugkar and Shri Yuvraj Bhutange and the society is not an accused. If the cause title is seen, the society is prosecuted through Shri Mahadev Drugkar and Shri Yuvraj Bhutange who are not arrayed in their individual capacity. This aspect, is of course not taken note of by the learned Magistrate, obviously because, the accused did not advance any submission on the maintainability of the complaint. 8. On facts, the learned Magistrate has recorded a finding that the complainant has not proved the existence of legal and enforceable debt or liability. The improbabilities in the version of the complainant are taken note of by the learned Magistrate. According to the complainant, he paid Rs. 50,000/- in cash to accused 1 on 01.8.2005 and on the same day deposited Rs. 50,000/- by cheque in the account of the society. Concendly, no receipt was obtained for the payment of Rs. 50,000/in cash. According to the complainant, the amount of Rs. 50,000/- which he gave in cash was received from one Mohandas Chhattani, who is not examined nor is any evidence adduced to show that such amount was indeed received by the complainant from Mohandas Chhattani. D.W.1 is accused Madhav Drugkar who has deposed that he issued cheque 010919 for Rs. 50,000/- to the complainant and asked him to obtain the signature of the Secretary of the society. The complainant did not obtain the signature of the society and the cheque was dishonoured. D.W.1, therefore, issued cheque 028295 and asked the complainant to return cheque 010969. The complainant assured that the cheque 010969 was in his house and it would not be misused. D.W.1 has deposed that the complainant did not pay him Rs. 50,000/- in cash on 01.8.2005. The learned Magistrate has recorded a finding that the defence is probabilised. I do not see any reason to take a contrary view. 9. No compelling case is made out to interfere with the judgment of acquittal. The appeal is sans merit and is rejected.