LexANEETA HADA versus M/S. GODFATHER TRAVELS & TOURS PVT. LTD.
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[2012] 5 S.C.R. 503 ANEETA HADA v. M/S. GODFATHER TRAVELS & TOURS PVT. LTD. (Criminal Appeal No. 838 of 2008) APRIL 27, 2012 [DALVEER BHANDARI, SUDHANSU JYOTI MUKHOPADHAYA AND DIPAK MISRA, JJ.) A B Liability: Vicarious liability - Held: An authorised signatory of a company cannot be held liable for prosecution C uls.138 of the Negotiable Instruments Act, 1881 or uls.67 rlw s.85 of Information Technology Act, 2000 without the company being arraigned as an accused - Information Technology Act, 2000 - ss.67, 85 - Negotiable Instruments Act, 1881 - ss.138, 141. D Negotiable Instruments Act, 1881 - s.141 - Statutory intendment of - Held: s. 147 stipulates that if a person who commits offence uls. 138 of the Act is a company, the company as well as every person in-charge of and E responsible to the company for the conduct of business of the company at the time of commission of offence is deemed to F be guilty of the offence - The criminal liability on account of dishonour of cheque primarily falls on the drawee company and is extended to the officers of the company and as there is a specific provision extending the liability to the officers, the conditions incorporated in s.141 are to be satisfied - The power of punishment is vested in the legislature and that is absolute in s. 141 of the Act which clearly speaks of commission of offence by the company - Applying the doctrine of strict construction, commission of offence by the company G 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 clear that when the company 503 H 504 SUPREME COURT REPORTS [2012] 5 S.C.R. A 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 - For maintaining the prosecution uls.141 of the Act, arraigning of a company as an accused is imperative - The analysis B pertaining to s.141 of the Act would squarely apply to the Information Technology Act, 2000. Interpretation of statutes: Legal fiction - Held: It is for the court to ascertain for what purpose the legal fiction has been C created and to imagine the fiction with all real consequences and instances unless prohibited from doing so - That apart, the use of the term 'deemed' has to be read in its context and further the fullest logical purpose and import are to be understood - Information Technology Act, 2000 - Negotiable Instruments Act, 1881. D The question which arose for consideration in these appeals was whether without the company being arraigned as an accused, an authorised signatory of a company would be liable for prosecution under Section E 138 of the Negotiable Instruments Act, 1881 or under Section 67 rlw Section 85 of Information Technology Act, 2000. Allowing the appeals, the Court F HELD: 1. Section 138 of the Negotiable Instruments Act, 1881 deals with the ingredients of the offence for dishonour of the cheque and the consequent non- payment of the amount due thereon. The main part of the provision can be segregated into three compartments, G namely, (i) the cheque is drawn by a person, (ii) the cheque drawn on an account maintained by him with the 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 a debt or other liability, is returned H unpaid, either because the amount of money standing to ANEETA HADA v. GODFATHER TRAVELS & TOURS 505 PVT. LTD. the credit of that account is insufficient to honour the A cheque or it exceeds the amount arranged to be paid from that account by an arrangement made with the bank and (iii) such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of the Act, be punished with imprisonment for B a term which may extend to two years or with fine which may extend to twice the amount of the cheque or with both. The proviso to the said section postulates under what circumstances the section shall not apply. Section 7 of the Act defines 'drawer' to mean the maker of a bill c of exchange or a cheque. An authorised signatory of a company becomes a drawer as he has been authorised to do so in respect of the account maintained by the company. Section 141 deals with offences by companies. On a reading of the said p
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