JUDGMENT : 1. This appeal is filed by the appellant challenging the judgment and order passed by the learned 3rd Additional Chief Judicial Magistrate, Nadiad dated 19.06.2023 in Criminal Case No.2843 of 2014 acquitting the respondent Nos.2 and 3 from the offence punishable under Section 138 of the Negotiable Instruments Act, 1886 (‘the N.I.Act’ referred hereinafter). 2. The facts of the case are mentioned hereinbelow: 2.1. Present appellant is the original complainant, who has filed the private complaint before the competent court alleging that he is the power of attorney of Ketanbhai Natwarbhai, who had done the financial transactions with one Vinodbhai Patel. The said Ketanbhai had lent the amount of Rs.1.20 Crore cash in the month of March 2014 as a hand loan to the respondents-accused. To repay the amount on repeated request, two cheques bearing cheque Nos.612234 and 627728 of ICICI Bank, Petlad Branch, Nadiad was issued for the amount of Rs.60 Lakh each. On depositing the said cheque with the Bank, the same was returned with an endorsement of ‘account closed’. Therefore, after following the procedure prescribed under the act private complaint came to be filed. 2.2. On recording the verification under Section 200 of the Code of Criminal Procedure, 1973 (‘the Cr.P.C. referred hereinafter) to the respondents-accused under Section 204 of the Cr.P.C. 2.3. On being appeared the plea came to be recorded below Exhibits 7 & 8 of the respondents-accused wherein they had pleaded innocent and claimed to be tried. 2.4. To bring the guilt to the home, the complainant had examined himself below Exhibit 30 and another witness Vinubhai Patel below Exhibit 69, who was one of the friend of the complainant and from him, some of the amount was borrowed by the complainant. In addition of the above, examination of witness with various documentary evidence was produced before the learned trial Court, which was in the nature of original cheque, power of attorney, notice and the undertaking which was executed by the complainant in favour of one Nitinbhai Patel and Vinubhai Chotabhai Patel. 2.5. On filing the closing pursis below Exhibit 71, the case was posted for recording of the further statement of the accused however, as the accused did not appear though the warrant was issued, the stage of the further statement was close. 2.5. On filing the closing pursis below Exhibit 71, the case was posted for recording of the further statement of the accused however, as the accused did not appear though the warrant was issued, the stage of the further statement was close. Thereafter, considering the evidence placed on record by both the parties, learned trial Court passed the judgment and order of acquittal, which is impugned before this Court. 3. Heard the learned advocate Mr.A.N.Pathan for the appellant and learned advocate Mr.A.A.Zabuawala for the respondents-accused. 3.1. Learned advocate Mr.A.N.Pathan submits that the judgment and order of the acquittal was passed by the learned trial Court mainly on the ground that company was not joined as a party as per the requirement under Section 141 of the N.I.Act. Learned advocate Mr.A.N.Pathan submits that there was no transaction with the company. The money was lent to the respondents-accused on their personal capacity, however, cheque was issued by the respondents-accused wherein the signature was made as the authorized signatory of the ACE Infrastructure Private Limited Company. 3.2. Learned advocate Mr.A.N.Pathan submits that as the amount was lent to the respondent Nos.2 and 3 therefore, there was no any requirement to join the company as the respondent-accused and there would not be any vicarious liability arise with regard to the respondent Nos.2 and 3, who are the authorized signatories of the company. Learned advocate Mr.A.N.Pathan submits that the cause title reflects that accused Nos.1 and 2 were joined as authorized signatory of the ACE Infrastructure Private Limited therefore, requirement under Section 141 was already satisfied however, without considering the same the judgment and order of acquittal was passed by the learned trial Court. 3.3. Learned advocate Mr.A.N.Pathan submits that huge amount was lent by the complainant to the respondents-accused and though it is observed by the learned trial Court in the impugned judgment that despite various summons and the warrants accused Nos.1 and 2 were remained failed to remain present before the learned trial Court and therefore, stage of further statement was also closed. However, without considering the same, the judgment and order was passed on technical ground by the learned trial Court. 3.4. Learned advocate Mr.A.N.Pathan further submits that even if, the company has not joined as a party before the learned trial Court, but for that technical reasons the accused cannot be exonerated from the liability to repay the amount. However, without considering the same, the judgment and order was passed on technical ground by the learned trial Court. 3.4. Learned advocate Mr.A.N.Pathan further submits that even if, the company has not joined as a party before the learned trial Court, but for that technical reasons the accused cannot be exonerated from the liability to repay the amount. As the transaction was personal in nature which was made with the respondent Nos.1 and 2. 3.5. In view of the above submissions, learned advocate Mr.A.N.Pathan submits that the appeal be allowed and respondents-accused be convicted for the charges levelled against them. 4. Considering the submissions made by the learned advocate for the appellant, relevant provisions of the N.I.Act is required to be looked into. “138. Dishonour of cheque for insufficiency, etc., of funds in the account. In view of the above submissions, learned advocate Mr.A.N.Pathan submits that the appeal be allowed and respondents-accused be convicted for the charges levelled against them. 4. Considering the submissions made by the learned advocate for the appellant, relevant provisions of the N.I.Act is required to be looked into. “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 provisions of this Act, be punished with imprisonment for [a term which may be extended 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.] 141. Offences by companies. Explanation.- For the purposes of this section, “debt or other liability” means a legally enforceable debt or other liability.] 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 was 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 subsection 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 subsection (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.” 5. The sole ground for which the judgment and of the acquittal was passed was that the company, namely, ACE Infrastructure Private Limited was not joined as a party in the complaint. 6. On perusing the record, more particularly below Exhibit 19 i.e. the disputed cheque, it transpires that the cheque was signed by the accused Nos.2 and 3 as authorized signatory for ACE Infrastructure Private Limited. 6. On perusing the record, more particularly below Exhibit 19 i.e. the disputed cheque, it transpires that the cheque was signed by the accused Nos.2 and 3 as authorized signatory for ACE Infrastructure Private Limited. The cause title of the complaint shows that the accused No.1, namely, Rajanbhai Dilipbhai Desai and accused No.2, namely, Hetalbhai Kaushikbhai Patel were joined as respondents-accused and as authorized signatories of ACE Infrastructure Private Limited. However, the company, namely, ACE Infrastructure Private Limited was not joined as a respondent-accused. 7. It is a settled law in the judgment rendered by the Apex Court in case of Anil Hada vs. Godfather Travels and Tours Pvt.Limited, reported in (2012) 5 SCC 661 wherein the Apex Court in paragraphs No.56 to 59 held as under: “56. We have referred to the aforesaid passages only to highlight that there has to be strict observance of the provisions regard being had to the legislative intendment because it deals with penal provisions and a penalty is not to be imposed affecting the rights of persons whether juristic entities or individuals, unless they are arrayed as accused. It is to be kept in mind that the power of punishment is vested in the legislature and that is absolute in Section 141 of the Act which clearly speaks of commission of offence by the company. The learned counsel for the respondents have vehemently urged that the use of the term “as well as” in the Section is of immense significance and, in its tentacle, it brings in the company as well as the director and/or other officers who are responsible for the acts of the company and, therefore, a prosecution against the directors or other officers is tenable even if the company is not arraigned as an accused. The words “as well as” have to be understood in the context. 57. In Reserve Bank of India v. Peerless General Finance and Investment Co. Ltd. and others it has been laid down that the entire statute must be first read as a whole, then section by section, clause by clause, phrase by phrase and word by word. The same principle has been reiterated in Deewan Singh and others v. Rajendra Prasad Ardevi and others and Sarabjit Rick Singh v. Union of India. 58. Ltd. and others it has been laid down that the entire statute must be first read as a whole, then section by section, clause by clause, phrase by phrase and word by word. The same principle has been reiterated in Deewan Singh and others v. Rajendra Prasad Ardevi and others and Sarabjit Rick Singh v. Union of India. 58. Applying the doctrine of strict construction, we are of the considered opinion that commission of offence by the company is an express condition precedent to attract the vicarious liability of others. Thus, the words “as well as the company” appearing in the Section make it absolutely unmistakably clear that when the company can be prosecuted, then only the persons mentioned in the other categories could be vicariously liable for the offence subject to the averments in the petition and proof thereof. One cannot be oblivious of the fact that the company is a juristic person and it has its own respectability. If a finding is recorded against it, it would create a concavity in its reputation. There can be situations when the corporate reputation is affected when a director is indicted. 59. In view of our aforesaid analysis, we arrive at the irresistible conclusion that for maintaining the prosecution under Section 141 of the Act, arraigning of a company as an accused is imperative. The other categories of offenders can only be brought in the dragnet on the touchstone of vicarious liability as the same has been stipulated in the provision itself. We say so on the basis of the ratio laid down in C.V. Parekh (supra) which is a three- Judge Bench decision. Thus, the view expressed in Sheoratan Agarwal (supra) does not correctly lay down the law and, accordingly, is hereby overruled. The decision in Anil Hada(supra) is overruled with the qualifier as stated in paragraph. The decision in Modi Distilleries (supra) has to be treated to be restricted to its own facts as has been explained by us hereinabove.” 8. Thus, the view expressed in Sheoratan Agarwal (supra) does not correctly lay down the law and, accordingly, is hereby overruled. The decision in Anil Hada(supra) is overruled with the qualifier as stated in paragraph. The decision in Modi Distilleries (supra) has to be treated to be restricted to its own facts as has been explained by us hereinabove.” 8. Considering the provisions of Section 141 of the N.I.Act and ratio laid down by the Apex Court in the above mentioned case it transpired that if a person committing an offence under Section 138 of the Act is a company, every person, who at the time when the offence committed in charge of or was responsible to the company for the conduct of business of the company as well as the company, shall be deemed to be guilty of the offence and shall be liable to proceed against and punished. 9. In absence of the company being arraigned as accused, a complaint against the respondents-accused appears to be a non-maintainable. The respondent Nos.2 and 3 had signed in the cheque as authorized signatories of the company, demand notice which was issued below Exhibit 21 also not served to the company therefore, in absence of the compliance of the provisions under Sections 138 and 141 of the N.I.Act, the judgment and order passed by the learned trial Court acquitting the respondents-accused is just and proper. 10. Though it is submitted that the transaction was with the respondents No.2 and 3 on their personal capacity, but when the cheque was issued in favour of the complainant as a authorized signatory of the company, the company certainly be required to be joined as a respondent-accused. In absence fulfilling of the requirement under Section 141, the respondent Nos.2 and 3 cannot be held vicariously liable for the offence and therefore they cannot be punished. 11. Considering the above judgment and overall circumstances of the case, this Court is of the view that the judgment and order of acquittal passed by the learned trial Court is in accordance with law and there is no any illegality, perversity or impropriety found in the judgment and, therefore, the same is required to be confirmed. 12. In view of the above discussions, this appeal fails. 12. In view of the above discussions, this appeal fails. The judgment and order passed by the learned 3rd Additional Chief Judicial Magistrate, Nadiad dated 19.06.2023 in Criminal Case No.2843 of 2014 acquitting the respondent Nos.2 and 3 from the offence punishable under Section 138 of the Negotiable Instruments Act, 1886 is hereby confirmed. 13. Record and proceedings be sent back to the concerned trial Court, forthwith. be sent back to the concerned trial Court, forthwith.