BIJOY KUMAR MONI versus PARESH MANNA & ANR.

Citation: [2024] 12 S.C.R. 1946 · Decided: 19-12-2024 · Supreme Court of India · Bench: J.B. PARDIWALA

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Judgment (excerpt)

[2024] 12 S.C.R. 1946 : 2024 INSC 1024
Bijoy Kumar Moni 
v. 
Paresh Manna & Anr.
(Criminal Appeal No. 5556 of 2024)
20 December 2024
[J.B. Pardiwala* and R. Mahadevan, JJ.]
Issue for Consideration
The dishonoured cheque in question was signed by respondent-
accused, in his capacity as Director and Authorised Signatory of the 
Company Shilabati Hospital Pvt. Ltd., on the account maintained 
by the Company with Standard Chartered Bank. By the impugned 
order, the High Court acquitted respondent-accused of offence 
punishable u/s.138 of Negotiable Instruments Act, 1881 holding 
that in absence of the company being arraigned as an accused, the 
complaint against the respondent-accused was not maintainable; 
whether the High Court committed any error in passing the 
impugned order is the question for determination.
Headnotes†
Negotiable Instruments Act, 1881 – ss.138, 139 and 141 – 
Dishonour of Cheque – Cheque issued on behalf of company 
by its authorised signatory – Whether prosecution could 
not proceed against such authorised signatory, unless the 
company was arraigned as an accused – Whether prosecution 
could proceed against the accused in his personal capacity – 
Whether benefit of exception embodied in doctrine of lex non 
cogit ad impossibilia could be extended to the complainant:
Held:1. Although it can be understood that the complainant had 
no occasion to believe that the cheque was drawn upon the bank 
account of Shilabati Hospital as the debt was one which was taken 
by the accused in his personal capacity, yet a bare perusal of the 
cheque shows that the cheque was signed by the accused in the 
capacity of the Director of the Shilabati Hospital Pvt. Ltd. as the 
same bears both the stamp of the director as well as the hospital – In 
case of a cheque issued on behalf of a company by its authorised 
signatory, prosecution cannot proceed against the such authorised 
signatory or other post-holders of the company as described under 
*Author
[2024] 12 S.C.R. 
1947
Bijoy Kumar Moni v. Paresh Manna & Anr.
Section 141 of the NI Act, unless the company who is the drawer 
of the cheque is arraigned as an accused in the complaint case 
filed before the magistrate – Further, vicarious liability can only 
be affixed against the directors, authorised signatories, etc. of the 
company after the company is held liable for the commission of 
offence under Section 138. [Paras 49, 50]
2.1. It is the case of the complainant that the cheque was issued 
in discharge of the personal liability of the accused towards the 
complainant, and hence there was no occasion for it to implead the 
company as an accused – However, even if the cheque might have 
been issued for the discharge of personal liability of the accused 
towards the complainant, had the company Shilabati Hospital Pvt. 
Ltd. been arraigned as an accused in the complaint case before 
the Trial Court, it would have remained open to the complainant to 
establish with the aid of the presumption under Section 139 that 
the cheque issued by the company was in discharge of a legally 
enforceable debt – However, in the absence of the drawer of the 
cheque having been arraigned as an accused, it was rightly held by 
the High Court that no prosecution could have proceeded against 
the accused in his personal capacity – The only way by which the 
accused could be held liable was under Section 141 of the NI Act, 
however the same could not have been done in the absence of 
the company being arraigned as an accused. [Paras 51, 55]
2.2. As specified in a three-Judge Bench decision in Aneeta Hada, 
the only exception to the above general rule is embodied in the 
doctrine of lex non cogit ad impossibilia which means that the law 
doesn’t compel the impossible – Thus, it is only in those cases 
where the impleadment of the company is not possible due to 
some legal impediment that this general rule can be exempted – 
In the facts on hand, it cannot be said that there was any legal 
difficulty in impleading Shilabati Hospital Pvt. Ltd. as an accused 
in the complaint case filed by the complainant – Thus, even the 
benefit of the exception cannot be extended to the complainant 
in the present case. [Para 56]
3. It is the drawer Company which must be first held to be the 
principal offender under Section 138 of the NI Act before culpability 
can be extended, through a deeming fiction, to the other Directors 
or persons in-charge of and responsible to the Company for the 
conduct of its

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