ORDER : 1. This application is filed seeking leave to prefer an appeal by the applicant-original complainant against judgment and order dated 26.04.2023 passed by the learned Chief Judicial Magistrate, Kadi in Criminal Case No. 262 of 2020 whereby, the accused came to be acquitted for the offences punishable under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the “N.I.Act”). 2. It is the case of the complainant that complainant is doing business of pharmaceutical raw materials and pharmaceutical finished products and the accused is also connected with health care products therefore, on purchasing the health care products, the cheque was issued for the repayment of the product of Rs.23,41,335/-. On depositing the said cheque, it was dishonoured. Therefore, after following due procedure, private complaint came to be filed before the learned trial court. 2.1. On being summoned respondent-accused appeared and raised the defence that PDC cheques were misused by the complainant and false case is filed 2.2. After considering the arguments and evidence on record, the learned trial court has acquitted the respondent-accused on the ground that the company namely Nayasa Life Science Pvt. Ltd. was not joined as prime accused and therefore, the provisions under section 141 of the N.I. Act were not fulfilled and the complaint is not maintainable which is the subject matter of challenge before this Court. 3. Heard learned advocate Mr.Khambholja for the applicant/ appellant. 3.1. Learned advocate Mr.Khambholja submits that cause title of the complaint reflects that respondent-accused namely Hitendra C. Prajapati was joined in the capacity of authorized person of Nayasa Life Science Pvt. Ltd. and therefore, it was not required to join the company as prime accused. However, learned trial court has acquitted the respondent-accused without any cogent reason. 3.2. Learned advocate Mr.Khambholja submits that though neither the signature on the cheque was disputed by the respondent-accused nor the issuance of the cheque was disputed and even though presumption which is in favour of the complainant under section 188 and 139 of the N.I.Act was not rebutted, learned trial court has acquitted the respondent-accused without any cogent reasons. 3.3. Learned advocate Mr.Khambholja submits that learned trial court has discarded the material evidence on record and passed judgment and order of acquittal and therefore, leave as prayed for is required to be granted. 4. 3.3. Learned advocate Mr.Khambholja submits that learned trial court has discarded the material evidence on record and passed judgment and order of acquittal and therefore, leave as prayed for is required to be granted. 4. Considering the arguments advanced by the learned advocate Mr.Khambholja and examining the record and proceedings thoroughly, it transpires from the record that complaint is filed by the complainant alleging that cheque which was issued for repayment of debt was dishonoured. The cheque which is produced below Exh.16 appears to have been signed by Hitendra C. Prajapati and issued by Nayasa Life Science Pvt. Ltd. Thereafter, demand notice which was issued below Exh.19 also reflects that the said notice was issued to the respondent-accused namely Hitendra C. Prajapati as authorized person of Nayasa Life Science Pvt. Ltd. Thereafter, complaint came to be filed wherein, the respondent accused was joined as authorized person of Nayasa Life Science Pvt. Ltd. 5. The judgment rendered by the Hon’ble Apex Court in the case of Aneeta Hada Vs Godfather Travels and Tours Pvt. Ltd wherein, the Hon’ble Apex Court has held as under: “21. At this juncture, we may refer to Section 141 which deals with offences by companies. As the spine of the controversy rests on the said provision, it is reproduced below: - “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 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.” 22. On a reading of the said provision, it is plain as day that if a person who commits offence under Section 138 of the Act is a company, the company as well as every person in charge of and responsible to the company for the conduct of business of the company at the time of commission of offence is deemed to be guilty of the offence. The first proviso carves out under what circumstances the criminal liability would not be fastened. Sub-section (2) enlarges the criminal liability by incorporating the concepts of connivance, negligence and consent that engulfs many categories of officers. It is worth noting that in both the provisions, there is a ‘deemed’ concept of criminal liability. 23. Section 139 of the Act creates a presumption in favour of the holder. The said provision has to be read in conjunction with Section 118(a) which occurs in Chapter XIII of the Act that deals with special rules of evidence. Section 140 stipulates the defence which may not be allowed in a prosecution under Section 138 of the Act. Thus, there is a deemed fiction in relation to criminal liability, presumption in favour of the holder, and denial of a defence in respect of certain aspects. 24. Section 141 uses the term ‘person’ and refers it to a company. There is no trace of doubt that the company is a juristic person. The concept of corporate criminal liability is attracted to a corporation and company and it is so luminescent from the language employed under Section 141 of the Act. It is apposite to note that the present enactment is one where the company itself and certain categories of officers in certain circumstances are deemed to be guilty of the offence. 58. The concept of corporate criminal liability is attracted to a corporation and company and it is so luminescent from the language employed under Section 141 of the Act. It is apposite to note that the present enactment is one where the company itself and certain categories of officers in certain circumstances are deemed to be guilty of the offence. 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 para 51. The decision in Modi Distillery has to be treated to be restricted to its own facts as has been explained by us hereinabove. 60. We will be failing in our duty if we do not state that all the decisions cited by the learned counsel for the respondents relate to service of notice, instructions for stopping of payment and certain other areas covered under Section 138 of the Act. 60. We will be failing in our duty if we do not state that all the decisions cited by the learned counsel for the respondents relate to service of notice, instructions for stopping of payment and certain other areas covered under Section 138 of the Act. The same really do not render any aid or assistance to the case of the respondents and, therefore, we refrain ourselves from dealing with the said authorities. Resultantly, the Criminal Appeal Nos. 838 of 2008 and 842 of 2008 are allowed and the proceedings initiated under Section 138 of the Act are quashed. 61. Presently, we shall advert to the other two appeals, i.e., Criminal Appeal Nos. 1483 of 2009 and 1484 of 2009 wherein the offence is under Section 67 read with Section 85 of the 2000 Act. In Criminal Appeal No. 1483 of 2009, the director of the company is the appellant and in Criminal Appeal No. 1484 of 2009, the company. Both of them have called in question the legal substantiality of the same order passed by the High Court. 62. In the said case, the High Court followed the decision in Sheoratan Agarwal (supra) and, while dealing with the application under Section 482 of the Code of Criminal Procedure at the instance of Avnish Bajaj, the Managing Director of the company, quashed the charges under Sections 292 and 294 of the Indian Penal Code and directed the offences under Section 67 read with Section 85 of the 2000 Act to continue. It is apt to note that the learned single Judge has observed that a prima facie case for the offence under Sections 292(2)(a) and 292(2)(b) of the Indian Penal Code is also made out against the Company. 63. Section 85 of the 2000 Act is as under: - “85. It is apt to note that the learned single Judge has observed that a prima facie case for the offence under Sections 292(2)(a) and 292(2)(b) of the Indian Penal Code is also made out against the Company. 63. Section 85 of the 2000 Act is as under: - “85. Offences by companies - (1) Where a person committing a contravention of any of the provisions of this Act or of any rule, direction or order made thereunder is a company, every person who, at the time the contravention was committed, was in charge of, and was responsible to, the company for the conduct of business of the company as well as the company, shall be guilty of the contravention and shall be liable to be proceeded against and punished accordingly: Provided that nothing contained in this sub- section shall render any such person liable to punishment if he proves that the contravention took place without his knowledge or that he exercised all due diligence to prevent such contravention. (2) Notwithstanding anything contained in sub-section (1), where a contravention of any of the provisions of this Act or of any rule, direction or order made thereunder has been committed by a company and it is proved that the contravention has taken place 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 the contravention and shall be liable to be proceeded against and punished accordingly.” 64. Keeping in view the anatomy of the aforesaid provision, our analysis pertaining to Section 141 of the Act would squarely apply to the 2000 enactment. Thus adjudged, the director could not have been held liable for the offence under Section 85 of the 2000 Act. Resultantly, the Criminal Appeal No. 1483 of 2009 is allowed and the proceeding against the appellant is quashed. As far as the company is concerned, it was not arraigned as an accused. Ergo, the proceeding as initiated in the existing incarnation is not maintainable either against the company or against the director. As a logical sequeter, the appeals are allowed and the proceedings initiated against Avnish Bajaj as well as the company in the present form are quashed.” 6. Ergo, the proceeding as initiated in the existing incarnation is not maintainable either against the company or against the director. As a logical sequeter, the appeals are allowed and the proceedings initiated against Avnish Bajaj as well as the company in the present form are quashed.” 6. Examining the case in light of the above decision, it transpires that the prime requirement for maintaining the prosecution under section 141 of the Act, arraigning of company as accused is missing. Neither notice was issued to the company nor the company was joined as respondent-accused. Therefore, learned trial court has rightly acquitted the respondent-accused from the offence punishable under section 138 of the N.I.Act. 7. Resultantly, leave as prayed for is declined against the judgment and order dated 26.04.2023 passed by the learned Chief Judicial Magistrate, Kadi in Criminal Case No. 262 of 2020. 8. Hence, this application is dismissed. ORDER IN F/CRIMINAL APPEAL NO. 30674 of 2023 In view of the order passed in application seeking leave to prefer an appeal, registration of the appeal is also refused.