IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No.16 of 2026 Date of Decision: 24.06.2026 _______________________________________________________ Praveen Kumar Thakur …….Appellant Versus Jeet Ram … Respondent _______________________________________________________ Coram: Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? 1 Yes. For the Appellant: Mr. Ashwani K. Sharma, Advocate. For the Respondent: Mr. Vinod Kumar Thakur, Advocate. _______________________________________________________ Sandeep Sharma, Judge(oral): Instant Criminal Appeal filed under Section 378 of the Code of Criminal Procedure, lays challenge to judgment of acquittal dated 28.04.2023, passed by learned Judicial Magistrate, First Class, Court No.5, Hamirpur, District Hamirpur, Himachal Pradesh, in complaint No.8-I-17, RBT No.46-I-21(CIS Reg. No.231-2017), titled Praveen Kumar vs. Jeet Ram, whereby respondent-accused (hereinafter referred to as ‘accused’) came to be acquitted of his having committed the offence punishable under Section 138 of the Negotiable Instruments Act ( for short ‘Act’). 2. Precisely, the facts of the case, as emerge from the pleadings as well as other material adduced on record by the 1Whether the reporters of the local papers may be allowed to see the judgment? 2 respective parties, are that the petitioner-complainant (hereinafter referred to as the ‘complainant’) instituted a complaint under Section 138 of the Act in the competent Court of law, alleging therein that in the month of May/June 2016, accused approached the complainant to invest in his company, namely Vaibhav Economic Solutions Private Limited and upon such request, the complainant advanced a sum of Rs. 4 lakhs(Rs.1 lakh and 3 lakh) from his saving to the accused. Accused, with a view to discharge his legal debt, issued two cheques, one bearing No.004105 dated 11.05.2017 of Central Bank of India, Jogindernagar, District Mandi, Himachal Pradesh amounting to Rs. 1,00,000/- and the other cheque bearing No.004109, dated 10.06.2017 of Central Bank of India, Jogindernagar, District Mandi, Himachal Pradesh, amounting to Rs.3,00,000/-. However, fact remains that aforesaid cheques on their presentation to the bank concerned were dishonoured vide memo dated 31.07.2017 with the remarks “No balance in the account”. Immediately after receipt of aforesaid return memo, complainant served accused with legal notice, calling upon him to make the payment good within stipulated time, but since accused failed to do the needful well within stipulated time, complainant instituted proceedings under Section 138 of the Act in the competent Court of law, which subsequently on the basis of the pleadings as well as 3 evidence adduced on record, acquitted the accused of his having committed the offence punishable under Section 138 of the Act. In the aforesaid background, complainant has approached this Court in the instant proceedings, praying therein for conviction of the accused after setting aside the judgment of acquittal recorded by learned trial Court. 3. Precisely, the grouse of the petitioner, as has been highlighted in the petition and further canvassed by Mr. Ashwani Sharma, learned counsel representing the petitioner, is that learned Court below has failed to appreciate the evidence it its right perspective. He stated that while deciding the case, Court below failed to take note of the averments contained in the complaint as well as agreement Ex.C-3 and C-6, perusal whereof clearly reveals that cheques in question Ex.CW2/A and Ex.CW2/B were not issued in the capacity of Director of the company, rather amount of sum of Rs. 4 lakh was given by the complainant to the accused for investment, but subsequently, he with a view to discharge his liability, issued two cheques, which were dishonoured vide memo dated 13.09.2019 Ex. CW2/C. 4. To the contrary, Mr. Vinod K. Thakur, learned counsel representing the respondent, while supporting the impugned judgment of acquittal recorded by learned Court below, vehemently argued that 4 there is no illegality or infirmity in the same and as such, no interference is called for. While referring to the pleadings as well as evidence adduced on record by the complainant, learned counsel for the respondent submitted that once company Vaibhav Economic Solutions Private Limited, at whose behest cheques were issued was not arraigned as an accused, complaint, if any, against the accused being Director of the Company was not maintainable. In support of his afore submissions, he placed reliance upon the judgment rendered by Hon'ble Apex Court in Aneeta Hada v. Godfather Travels & Tours (P) Ltd., (2012) 5 SCC 661, wherein, a similar provision enacted in the Negotiable Instruments Act was considered by the Hon’ble Supreme Court and it was held that prosecution of the company is sine qua non for prosecuting the officials of the company. It is not permissible to prosecute the officials without prosecuting the company. He further submitted that otherwise also, complaint filed by the petitioner is pre-mature because same has been filed before the expiry of 45 days after the date of issuance of notice. He submitted that since no cogent and convincing evidence ever came to be led on record with regard to service of demand notice upon the accused, complainant ought to have waited for 45 days from the date of his having issued notice. However, in the instant case, he proceeded to file complaint before expiry of 45 days. 5 5. Having heard learned counsel for the parties and perused the material adduced on record vis-à-vis reasoning assigned in the impugned judgment of acquittal recorded by learned trial Court, this Court finds no illegality and infirmity in the same and as such, no interference is called for. 6. Admittedly, in the case at hand, cheques Ex.CW2/A and Ex. CW2/B have been issued on behalf of M/s Vaibhav Economic Solutions Private Limited, but such company has been not arraigned as an accused. As per the averments contained in the complaint, sum of Rs. 4 lakh was advanced by the complainant to the accused for investment in the company, namely M/s Vaibhav Economic Solutions Private Limited. There is no averments in the complaint that aforesaid amount allegedly given by the complainant to the accused was not invested in the company, rather it is averred in the complaint that accused, with a view to discharge his lawful liability, issued two cheques amount to Rs. 3 lakh and 1 lakh respectively, but same were dishonoured on account of insufficient funds. 7. Agreement adduced on record (Ex. C-3 & C-6) clearly reveals that sum of Rs. 4 lakh was advanced to the accused in the capacity of Director of M/s Vaibhav Economic Solutions Private Limited and not in his individual capacity. Cheques, which ultimately came to be dishonoured, were also issued in the name of the 6 company and accused has signed the cheques in question in the capacity of Director of the company, but since company has not been arraigned as an accused, complaint filed against the Director of the company is not maintainable in terms of Section 141 of the Act. 8. At first instance, it was incumbent upon the complainant to prove that sum of Rs. 4 lakh was paid for investment in afore company to the accused, but he failed to do so and subsequently with a view to discharge his liability issued cheques in question, but as has been observed hereinabove, no such kind of pleadings are there in the complaint instituted at the behest of the complainant under Section 138 of the Act. Moreover, cheques have been issued in the name of the company by accused in the capacity of the Director. Till the time, company, which is a juristic person, is not held guilty under the relevant provisions of law, accused, who is the Director of the company, cannot be held vicariously liable for the offence committed by the firm. 9. Section 141 of the Act clearly provides that if the person committing an offence under section 138 of the Act 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 7 and punished accordingly. However, proviso two of aforesaid provisions further provides that nothing contained in afore 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. Section 141(2) of the Act clearly provides that 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. 10. Careful perusal of aforesaid provisions of law clearly suggests that to hold Director, Manager and Secretary of the company liable firstly offence under the Negotiable Instruments Act, complainant is required to prove that offence under the Act has been committed by the company and such offence was committed with the consent or connivance of any Director, Manager, Secretary or Officer of the company. 8 11. At this stage, it would be profitable to take note of the judgment passed by Hon'ble Apex Court in Aneeta Hada case(supra), wherein it has been held as under:- “58. Applying the doctrine of strict construction, we are of the considered opinion that the commission of an 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 [(1970) 3 SCC 491: 1971 SCC (Cri) 97] which is a three-judge Bench decision. Thus, the view expressed in Sheoratan Agarwal [(1984) 4 SCC 352: 1984 SCC (Cri) 620] does not correctly lay down the law and, accordingly, is hereby overruled. The decision in Anil Hada [(2000) 1 SCC 1: 2001 SCC (Cri) 174] is overruled with the qualifier as stated in para 51. The decision in Modi Distillery [(1987) 3 SCC 684: 1987 SCC (Cri) 632] has to be treated to be restricted to its own facts as has been explained by us hereinabove.” 12. Reliance is also placed upon the judgment passed by Hon'ble Apex Court Dilip Hiraramani vs. Bank of Baroda, 2022 SCC Online SC 579, wherein it has been categorically held that under Section 138 read with Section 141 of the Act, vicarious liability of a director or partner only arises when the company or firm commits 9 the offence as the primary offender. In afore case, Hon'ble Apex Court has held that Section 141 impose vicarious liability by deeming fiction which presupposes and requires the commission of the offence by the company or firm, meaning thereby unless the company or firm has committed the offence as a principal accused, the persons mentioned in sub-section (1) and (2) would not be liable and convicted as vicariously liable. 13. At the cost of repetition, it is once again noticed that in the case at hand complaint has been filed against the accused Jeet Ram, Director of the Company, but without impleading the company as an accused. Cheques Ex. CW2/A and Ex. CW2/B have been also issued by Vaibhav Economic Solutions Private Limited and signed by the accused. 14. Similarly careful perusal of agreement Ex.C-3 and C-6, clearly reveals that money was given to the accused, being director of the company for investment and as per terms and conditions, accused as well as company was under obligation to pay profit 5% monthly to the complainant on his principal amount for one year. Though, it came to be vehemently argued at the behest of the complainant that accused was not given sum of Rs. 4 lakh in the capacity of Director, but such plea is totally contradictory to the averments contained in the complaint as well as other material 10 adduced on record, especially legal notice Ex.C-5, perusal whereof clearly reveals that same was issued to the accused Jeet Ram in the capacity of Director of Vaibhav Economic Solutions Private Limited. Since complainant failed to array company as an accused, who is Director of the company, cannot be held vicariously liable and as such, no illegality can be said to have been committed by the Courts below while passing the judgment of acquittal. 15. Close scrutiny of the material adduced on record further compel this Court to agree with the submissions raised at the behest of the accused that complaint, being pre-mature, otherwise could not have been entertained. As per the averments contained in the complaint, cause of action arose to the complainant on 24.08.2017 when 15 days period has expired after service of demand notice dated 08.08.2017. Complainant served legal notice dated 08.08.2017 upon the accused through registered post, which was claimed to be served on 10.08.2017. After expiry of 30 days from the date of alleged receipt of notice, complainant proceeded to file complaint under Section 138 of the Act on 14.09.2017. Careful perusal of evidence adduced on record by the complainant nowhere suggests that he was able to prove that legal notice dated 08.08.2017 was duly served upon the accused on 10.08.2017. Though, an official from the Postal Department, namely Sh. Kavi Raj came to be examined by the 11 complainant, but bare perusal of his statement nowhere suggests that he stated something specific with regard to delivery of registered post upon the accused on 10.08.2017. Once complainant was unable to prove factum of delivery of notice dated 08.08.2017 upon the accused on 10.08.2017, accused presumed to be served after expiry of 30 days from the date of issuance of legal notice on 08.08.2017 through registered post and thereafter further 15 days time was also required to be given to the accused for making the payment, meaning thereby no complaint under Section 138 of the Act could have been filed by the complainant before 24th September, 2017. However, in the instant case same came to be filed on 14th September, 2017 i.e. 10 days prior to expiry of 45 days. 16. Consequently, in view of the detailed discussion made hereinabove, this Court finds no illegal and infirmity in the impugned judgment of acquittal and as such, same is upheld. The present appeal fails and is accordingly dismissed alongwith pending applications, if any. (Sandeep Sharma), Judge June 24, 2026 (shankar)