ORDER 1. This revision petition is filed by revision petitioner / accused under Section 397 and 401 of Criminal Procedure Code, 1973 (hereinafter referred to as 'the Code' for short) challenging the judgment of conviction and order of sentence passed by XIX ACMM Bangalore in C.C.No.7250/2009 dated 08.04.2014 and confirmed by the XLVI Additional City Civil and Sessions Judge, Bangalore in Crl.A.No.430/2014 vide judgment dated 19.09.2015. 2. For the sake of convenience, the parties herein are referred with original ranks occupied by them before the trial Court. 3. The brief factual matrix leading to the case are as under: It is the case of the complainant that accused is carrying catering business in the name of 'Icon Hospitalities'. The complainant was carrying business of distribution of LPG cylinders of Indian Oil Corporation and accused is the customer of complainant. That accused used to purchase LPG commercial gas cylinders on credit basis from time to time and the complainant had supplied LPG cooking gas cylinders worth of Rs.16,46,950/- to the accused. It is the contention of the complainant that the accused in order to repay the outstanding amount had issued five cheques for a sum of Rs.5,00,000/-, Rs.2,00,000/-, Rs.3,00,000/-, Rs.1,00,000/-and Rs.1,75,000/-, total amounting to Rs.12,75,000/-, all are drawn on South Indian Bank, Christ College Extension Counter, Bangalore. When the cheques were presented, they were dishonored and the cheque of Rs.5,00,000/- was returned as 'account closed', while the other four cheques were returned with an endorsement 'exceeds arrangements'. Since, the accused has failed to discharge the liability covered under the cheques, the complainant has issued a legal notice through his counsel on 01.09.2008 demanding the cheque amount and the notice was duly served on the accused. The accused has failed to make payment and hence, the complainant has lodged a complaint under Section 200 of the Code for the offence under Section 138 of Negotiable Instruments Act, 1881 ( hereinafter referred to as 'the Act' for short). 4. The learned Magistrate has taken cognizance of the offence and issued process. The accused has appeared through his counsel and was enlarged on bail. The prosecution papers were also furnished to him as contemplated under Section 207 of the Code. The accusation was read over and explained to the accused and he denied the same. 5. 4. The learned Magistrate has taken cognizance of the offence and issued process. The accused has appeared through his counsel and was enlarged on bail. The prosecution papers were also furnished to him as contemplated under Section 207 of the Code. The accusation was read over and explained to the accused and he denied the same. 5. The partner of the complainant is examined as PW1 and he placed reliance on 133 documents viz., Ex.P1 to Ex.P133. After conclusion of the evidence of complainant, the statement of accused under Section 313 of the Code is recorded to enable him to explain the incriminating evidence appearing against him in the case of the complainant. The case of accused is of total denial. 6. The accused was got examined himself as DW1 and he has also placed reliance on three documents marked at Ex.D1 to Ex.D3. 7. After hearing the arguments and after appreciating the oral as well as documentary evidence, the learned Magistrate has convicted the accused by imposing a fine of Rs.14 Lakhs for the offence under Section 138 of the Act with default sentence of six months. 8. Being aggrieved by this judgment of conviction and order of sentence, accused has filed an appeal before XLV Additional City Civil and Sessions Judge, Bangalore in Crl.A.No.430/2014. The learned Sessions Judge after re-appreciating oral and documentary evidence has dismissed the appeal. Being aggrieved by these concurrent findings, the accused is before this court by way of revision. 9. Heard the arguments advanced by the learned counsel for the revision petitioner / accused and the learned counsel for respondent / complainant. Perused the records. 10. The learned counsel for revision petitioner would contend that the transaction was between the complainant and the firm, but the notice was issued to the accused in his personal capacity. He would further assert that the firm is not arrayed as an accused and the total amount demanded was not disclosed in the notice. He would also assert that as admitted by the complainant, there are four partners and the dealing was with firm and cheque was issued on behalf of the firm but, the accused was prosecuted individually and unless the firm is vicariously held liable, the accused cannot be convicted. He would also assert that as admitted by the complainant, there are four partners and the dealing was with firm and cheque was issued on behalf of the firm but, the accused was prosecuted individually and unless the firm is vicariously held liable, the accused cannot be convicted. He would also contend that all along in legal notice as well as the complaint and the disputed cheque disclose that they were signed as a partner or authorized signatory but not in individual capacity. He would also assert that what is the base for calculation of the total due is not at all forthcoming. He would further assert that the last supply was during May 2008 and cheques were issued well in advance, which cannot be accepted. How the final figure was arrived is not explained and as admitted by the complainant, the cylinders were delivered in the office and received by various partners. He would also assert that Rs.13 Lakhs is said to have been paid and it is not forthcoming as to whether it is deducted or not. Hence, he would contend that both the courts below have failed to appreciate these aspects and in a mechanical way, convicted the accused only on the ground that cheque bears signature of the accused. He would also assert that both the courts below have failed to consider the provisions of Section 141 of the Act and hence, according to him, the judgment of conviction and order of sentence passed by both the courts below is perverse and it has resulted in miscarriage of justice. Hence, he would seek for allowing the revision petition. 11. Per contra, the learned counsel for respondent / complainant would contend that the signature on the cheque is admitted of that of accused and notice is served on the accused. He would contend that no reply was given and there is no evidence as to whether the firm is registered or unregistered and no such defence was taken before the trial court or lower appellate court. He would also contend that since, the cheque bears the signature of the accused and when he is unable to explain, adverse inference is required to be drawn against him since, the accused being in possession of relevant document of registration of the firm, has not produced the same. He would also contend that since, the cheque bears the signature of the accused and when he is unable to explain, adverse inference is required to be drawn against him since, the accused being in possession of relevant document of registration of the firm, has not produced the same. He would also contend that Ex.P1 clearly disclose that the amount was specified and in February 2008, the payment was towards partial due and Ex.P41 is the audit statement and the cheque amount is out of the total due amount for 2006-08. Hence, he would contend that both the courts below have appreciated the oral and documentary evidence in proper perspective and have rightly convicted the accused. Hence, he would seek for dismissal of the revision. 12. Having heard the arguments and after appreciating the oral and documentary evidence, now the following point would arise for my consideration: 'Whether the judgment of conviction and order of sentence passed by the trial court and affirmed by the lower appellate court are perverse, arbitrary and illegal so as to call for any interference by this court?' 13. It is the specific contention of the complainant that he is running a LPG distribution aganecy and accused is his customer and he is carrying catering business in the name and style as 'Icon Hospitalities'. According to the complainant, towards due amount for having supplied LPG commercial gas cylinders, the accused was required to pay Rs.16,46,950/- and towards part payment, he has issued five cheques amounting to Rs.12,75,000/-. There is no serious dispute of the fact that accused is partner of catering firm known as 'Icon Hospitalities'. It is also an undisputed fact that the complainant is a distributor of Indane LPG gas cylinder. Further, it is admitted fact that the disputed cheques produced at Ex.P1 to Ex.P5 bear the signature of the accused. 14. It is all along argued that there is no records to show as to how this amount was arrived. But Ex.P7 and Ex.P41 establish the dues to be paid by firm by name 'Icon Hospitalities'. Though the accused tried to dispute this aspect, the oral and documentary evidence led by the complainant establish the due amount of more than Rs.16 Lakhs. 15. Ex.P38 discloses that the complainant is a registered firm. But Ex.P7 and Ex.P41 establish the dues to be paid by firm by name 'Icon Hospitalities'. Though the accused tried to dispute this aspect, the oral and documentary evidence led by the complainant establish the due amount of more than Rs.16 Lakhs. 15. Ex.P38 discloses that the complainant is a registered firm. When complainant is a registered firm, the bar under Section 69 of the Indian Partnership Act, 1932 for prosecution does not have any relevancy. In this context, the learned counsel for respondent has placed reliance on the decisions in 'MUKUND BALKRISHNA KULKARNI VS. KULKARNI POWDER METALLURGICAL INDUSTRIES AND ANOTHER', (2004) 13 SCC 750 and in 'PURUSHOTTAM AND ANOTHER VS. SHIVRAJ FINE ARTS LITHO WORKS AND OTHERS', (2007) 15 SCC 58 . In view of the principles enunciated in the above cited decisions and since, the complainant is a registered firm; there is no hurdle for prosecution. 16. At the same time, it is also important to note here that Ex.P1 to Ex.P5 though bears the signature of the accused, they are issued on behalf of 'Icon Hospitalities'. Ex.P1 was signed as an authorized signatory, while Ex.P2 to Ex.P5 are signed as a partner. These cheques were issued on behalf of the firm, but not in individual capacity. Section 141 of N.I.Act, which deals with offences by companies, is extracted below for the reference: 141.Offences by companies : (1) If the person committing an offence under Section 138 is a company, every person who, at the time the offence committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly: Provided that nothing contained in this sub-Section shall render any person liable to punishment if he proves that the offence was committed without his knowledge, or that he had exercised all due diligence to prevent the commission of such offence: Provided further that where a person is nominated as a Director of a company by virtue of his holding any office or employment in the Central Government or State Government or a financial corporation owned or controlled by the Central Government or the State Government, as the case may be, he shall not be liable for prosecution under this Chapter. (2) Notwithstanding anything contained in Sub-Section (1), where any offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Explanation - For the purposes of this Section,- (a) 'company' means any body corporate and includes a firm or other association of individuals; and (b) 'director', in relation to a firm, means a partner in the firm. 17. Hence, Section 141 of the Act mandates that for offence under Section 138 of the Act committed by the company, every person who is in charge of the company and the conduct of the business of the company as well as the company shall be deemed to be guilty of the offence and shall be liable to be proceeded and punished. Admittedly, in the instant case, as per the case of complainant, accused has dealt on behalf of the firm, 'Icon Hospitalities'. The allegations made in the complaint also disclose that the cylinders were supplied to the catering firm, but not to the accused in his individual capacity as the commercial gas cylinders were said to have been supplied. The partner of the complainant is examined as PW1 and he has again reiterated that the accused is carrying the business of catering in the name and style of 'Icon Hospitalities' and the cylinders were supplied to the firm. In the cross-examination, complainant has admitted that the gas cylinders were supplied to Icon Hospitalities firm. He has further admitted that there are four partners in the said firm but, he prosecuted the accused because he is the signatory to the cheques. He has further admitted that the cylinders were delivered in the office of the firm. The PW.1 in his further cross-examination also asserted that the cheques were not handed over by the accused, but claimed that cheques were handed over to him by the Manager of the office by name Mr.Suresh Rao. 18. He has further admitted that the cylinders were delivered in the office of the firm. The PW.1 in his further cross-examination also asserted that the cheques were not handed over by the accused, but claimed that cheques were handed over to him by the Manager of the office by name Mr.Suresh Rao. 18. In the cross-examination, accused has admitted that he has sought credit facility from complainant for supply of gas cylinders, but the entire evidence clearly disclose that gas cylinders were supplied to the company and they are commercial gas cylinders. The main contention of the accused is that the firm was not impleaded as an accused and as such, the prosecution of the accused in view of bar under Section 141 of the Act in his individual capacity is not permissible. 19. The learned counsel for revision petitioner / accused in this regard has placed reliance on a decisions of the Apex Court reported in 'ANSS RAJASHEKAR VS. AUGUSTUS JEBA ANANTH', (2020) 15 SCC 348 , i.e., in respect of the presumption under Section 139 of the Act and since, the cheque has been issued and signature has been admitted, this citation would not assist the revision petitioner in any way. 20. The learned counsel for revision petitioner further placed reliance on a decision in 'AJIT BALSE VS. RANGA KARKERE', (2015) 15 SCC 748 . The learned counsel for revision petitioner relying on this decision has argued that the decision is applicable to all pending proceedings in appeal or revision in view of the decision of 'ANEETA HADA VS. GODFATHER TRAVELS AND TOURS PRIVATE LIMITED' (2012) 5 SCC 661 . The Apex court in the said decision has clearly held that when the cheque is issued on behalf of the company, impleadment of company as an accused is mandatory. Further, relying on the decision of ANEETA HADA supra, it is observed by Apex court that by applying the doctrine of strict construction for commission of the offence by a company is an express condition precedent to attract vicarious liability of others. Hence, it is observed that when a company can be prosecuted, then only the persons mentioned in other categories could be held vicariously liable. The said observation is again reiterated by the Apex Court in the decision IN 'DAYLE DE'SOUZA VS. GOVERNMENT OF INDIA THROUGH DEPUTY CHIEF LABOUR COMMISSIONER (C) AND ANOTHER', (2021) SCC online SC 1012. Hence, it is observed that when a company can be prosecuted, then only the persons mentioned in other categories could be held vicariously liable. The said observation is again reiterated by the Apex Court in the decision IN 'DAYLE DE'SOUZA VS. GOVERNMENT OF INDIA THROUGH DEPUTY CHIEF LABOUR COMMISSIONER (C) AND ANOTHER', (2021) SCC online SC 1012. The Hon'ble Apex Court in the said decision relying on ANEETA HADA supra and decision of 'SHARATH KUMAR SANGHI VS. SANGITA RANE', (2015) 12 SCC 781 has observed that when company has not been arrayed as an accused, then the partners alone cannot be prosecuted and alone cannot be convicted. The similar view is also taken by the Apex Court in the decision reported in ANEETA HADA supra. The Hon'ble Apex Court relying on the decision of ANEETA HADA supra has observed in para 59 that for maintaining prosecution under Section 141 of the Act, arraying a company as an accused is imperative. It is further observed that the other categories of offenders can only be brought in the drag net on the touchstone of vicarious liability as same has been stipulated in Section 141 of the Act. 21. The same view is again reiterated by Hon'ble Apex court in 'ANIL GUPTA VS. STAR INDIA PRIVATE LIMITED AND ANOTHER', (2014) 10 SCC 373 . 22. In the latest decision of Apex Court in 'DILIP HARIRAMANI VS. BANK OF BARODA', 2022 SCC Online SC 579, the Hon'ble Apex Court has again reiterated this view observing that the provisions of Section 141 of the Act, imposed vicarious liability by deeming fiction, which pre supposes and requires the commission of offence by the company or firm. Hence, it is observed that unless the company or firm has committed the offence as a principal accused, the other persons responsible for the business or transaction of the company would not be liable and convicted as vicariously liable. In support of his contention, the learned counsel for the revision petitioner /accused has also placed reliance on larger bench decision of the Apex Court in 'ANEETA HADA VS. GODFATHER TRAVELS AND TOURS PRIVATE LIMITED', (2012) 5 SCC 661 . In support of his contention, the learned counsel for the revision petitioner /accused has also placed reliance on larger bench decision of the Apex Court in 'ANEETA HADA VS. GODFATHER TRAVELS AND TOURS PRIVATE LIMITED', (2012) 5 SCC 661 . Hence, it is evident that the decision of ANEETA HADA supra referred above was all along followed and it is held that under Section 141 of the Act, unless the company is prosecuted, the other partners or directors cannot be held responsible. 23. Admittedly in the instant case, the allegations itself disclose that the cheques were issued on behalf of the firm 'Icon Hospitalities' and the allegations made in the complaint as well as in the evidence disclose that the commercial gas cylinders were also delivered in the office of the firm. It is also admitted that the firm is having four partners and it is not a proprietary firm. In view of these aspects, as per the mandate of Section 141 of the Act the complainant ought to have arrayed 'Icon Hospitalities' as accused to fix vicarious liability on the accused /revision petitioner who was the signatory on the cheques on behalf of the company / firm. But in the absence of arraying the firm as an accused, question of prosecuting the accused alone does not arise at all. Hence, the accused / revision petitioner cannot be convicted for the offence under Section 138 of the Act in view of the mandate of the Apex Court as referred above. 24. It is argued by the learned counsel for the respondent that this defence was not raised before the trial court or first appellate court. However, when it is a question of law such defence can be raised at any stage and hence, the said arguments holds no water. Looking to these facts and circumstances, both the courts have committed an error in appreciating the oral and documentary evidence in view of the mandate of Section 141 of the Act in convicting the accused. The judgment of conviction and order of sentence passed by both the courts below is hence, perverse and arbitrary and calls for interference. In view of these facts and circumstances, the revision petition needs to be allowed. As such, the point under consideration is answered in the affirmative. Hence, I proceed to pass the following: ORDER (i) The revision petition is allowed. In view of these facts and circumstances, the revision petition needs to be allowed. As such, the point under consideration is answered in the affirmative. Hence, I proceed to pass the following: ORDER (i) The revision petition is allowed. (ii) The impugned judgment of conviction and order of sentence passed by the judgment of conviction and order of sentence passed by XIX ACMM Bangalore in C.C.No.7250/2009 dated 08.04.2014 and confirmed by the XLVI Additional City Civil and Sessions Judge, Bangalore in Crl.A.No.430/2014 vide judgment dated 19.09.2015 stand set aside. (iii) The accused/revision petitioner stands acquitted for the offences punishable under Section 138 of Negotiable Instruments Act, 1881 and he is set at liberty. (iv) Bail bonds stand cancelled. (v) The amount if any deposited by accused/revision petitioner shall be returned to him. (vi) Send back the original records to the concerned trial Court along with a copy of this order.