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Vickery, D., Greive, C., Howson, K. & Morey, P. (2009). $89,000 from the Department of Education, Employment & Workplace Relations. The grant was for funding to ETM Perspectives and the Avondale Centre for Excellence in Learning and Teaching to (a) assess the current demographic, health, employment and educational situation of the members of the Dieri Aboriginal Corporation (DAC); (b) determine the current financial status of the DAC; and (c) create a development plan that incorporates management, company structure and communications that allows the aims and objectives of the DAC to be realised. The grant culminated in the submission of the report: A sense of place and purpose: Review of the Dieri Aboriginal Corporation. A confidential report to the Steering Committee of he Dieri Aboriginal Corporation.
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Morris, R. (2009). Painting: Recent Paintings. Robin Gibson Gallery, Darlinghurst Sydney. 15 August - 5 September.

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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.
43. 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 37. The decision in Modi Distilleries (supra) has to be treated to be restricted to its own facts as has been explained by us hereinabove.
Aneeta Hada Vs. Godfather Travels and Tours Pvt. Ltd. and Ors.
Dalveer Bhandari, S.J. Mukhopadhaya and Dipak Misra, JJ.
In Criminal Appeal Nos. 838 of 2008 and 842 of 2008, the common proposition of law that has emerged for consideration is whether an authorised signatory of a company would be liable for prosecution under Section 138 of the Negotiable Instruments Act, 1881 (for brevity 'the Act') without the company being arraigned as an accused. Be it noted, these two appeals were initially heard by a two-Judge Bench and there was difference of opinion between the two learned Judges in the interpretation of Sections 138 and 141 of the Act and, therefore, the matter has been placed before us.
2. In Criminal Appeal Nos. 1483 of 2009 and 1484 of 2009, the issue involved pertains to the interpretation of Section 85 of the Information Technology Act, 2000 (for short 'the 2000 Act') which is pari materia with Section 141 of the Act. Be it noted, a director of the appellant-Company was prosecuted under Section 292 of the Indian Penal Code and Section 67 of the 2000 Act without impleading the company as an accused. The initiation of prosecution was challenged under Section 482 of the Code of Criminal Procedure before the High Court and the High Court held that offences are made out against the appellant-Company along with the directors under Section 67 read with Section 85 of the 2000 Act and, on the said base, declined to quash the proceeding. The core issue that has emerged in these two appeals is whether the company could have been made liable for prosecution without being impleaded as an accused and whether the directors could have been prosecuted for offences punishable under the aforesaid provisions without the company being arrayed as an accused. Regard being had to the similitude of the controversy, these two appeals were linked with Criminal Appeal Nos. 838 of 2008 and 842 of 2008.
3. We have already noted that there was difference of opinion in respect of the interpretation of Sections 138 and 141 of the Act and, therefore, we shall advert to the facts in Criminal Appeal No. 838 of 2008 and, thereafter, refer to the facts in Criminal Appeal Nos. 1482 of 2009 and 1484 of 2009.
4. The Appellant, Anita Hada, an authorised signatory of International Travels Limited, a company registered under the Companies Act, 1956, issued a cheque dated 17th January, 2011 for a sum of Rs. 5,10,000/- in favour of the Respondent, namely, M/s. Godfather Travels & Tours Private Limited, which was dishonoured as a consequence of which the said Respondent initiated criminal action by filing a complaint before the concerned Judicial Magistrate under Section 138 of the Act. In the complaint petition, the Company was not arrayed as an accused. However, the Magistrate took cognizance of the offence against the accused Appellant.
28. With the greatest of respect to the learned judges, it is difficult to agree therewith. The findings, if taken to its logical corollary lead us to an anomalous position. The trial court, in a given case although the company is not an accused, would have to arrive at a finding that it is guilty. Company, although a juristic person, is a separate entity. Directors may come and go. The company remains. It has its own reputation and standing in the market which is required to be maintained. Nobody, without any authority of law, can sentence it or find it guilty of commission of offence. Before recording a finding that it is guilty of commission of a serious offence, it may be heard. The Director who was in charge of the company at one point of time may have no interest in the company. He may not even defend the company. He need not even continue to be its Director. He may have his own score to settle in view of change in management of the company. In a situation of that nature, the company would for all intent and purport would stand convicted, although, it was not an accused and, thus, had no opportunity to defend itself.
29. Any person accused of commission of an offence, whether natural or juristic, has some rights. If it is to be found guilty of commission of an offence on the basis whereof its Directors are held liable, the procedures laid down in the Code of Criminal Procedure must be followed. In determining such an issue all relevant aspects of the matter must be kept in mind. The ground realities cannot be lost sight of. Accused persons are being convicted for commission of an offence under Section 138 of the Act inter alia on drawing statutory presumptions.
Various provisions contained therein lean in favour of a drawer of the cheque or the holder thereof and against the accused. Sections 20, 118(c), 139 and 140 of the Act are some such provisions. The Act is a penal statute. Unlike offences under the general law it provides for reverse burden. The onus of proof shifts to the accused if some foundational facts are established.
legally permissible to hold a company, the prime offender, liable for commission of an offence although it does not get an opportunity to defend itself. It is against all principles of fairness and justice. It is opposed to the Rule of Law. No statute in view of our Constitutional Scheme can be construed in such a manner so as to refuse an opportunity of being heard to a person. It would not only offend a common- sense, it may be held to be unconstitutional. Such a construction, therefore, in my opinion should be avoided.
In any event in a case of this nature, the construction which may be available in invoking Essential Commodities Act, Prevention of Food Adulteration Act, which affects the Society at large may not have any application when only a private individual is involved.
It is one thing to say that the complaint petition proceeded against the accused persons on the premise that the company had not committed the offence but the accused did, but it is another thing to say that although the company was the principal offender, it need not be made an accused at all.
I have no doubt whatsoever in our mind that prosecution of the company is a sine qua non for prosecution of the other persons who fall within the second and third categories of the candidates, viz., everyone who was in-charge and was responsible for the business of the company and any other person who was a director or managing director or secretary or officer of the company with whose connivance or due to whose neglect the company had committed the offence.
True interpretation, in my opinion, of the said provision would be that a company has to be made an accused but applying the principle "lex non cogit ad impossibilia", i.e., if for some legal snag, the company cannot be proceeded against without obtaining sanction of a court of law or other authority, the trial as against the other accused may be proceeded against if the ingredients of Section 138 as also 141 are otherwise fulfilled. In such an event, it would not be a case where the company had not been made an accused but would be one where the company cannot be proceeded against due to existence of a legal bar. A distinction must be borne in mind between cases where a company had not been made an accused and the one where despite making it an accused, it cannot be proceeded against because of a legal bar.
8. Being of the aforesaid view, he allowed the appeals.
9. V.S. Sirpurkar J., after narrating the facts and referring to Section 141(2) of the Act, which deals with additional criminal liability, opined that even if the liability against the Appellant is vicarious herein on account of the offence having alleged to have been committed by M/s. International Travels, it would be presumed that the Appellant had also committed the offence and non-arraying of M/s. International Travels as an accused would be of no consequence. His Lordship further held that there is nothing in Standard Chartered Bank and Ors. (supra), S.M.S. Pharmaceuticals Limited (supra), Sabitha Ramamurthy and Anr. (supra), S.V. Muzumdar and Ors. (supra), Sarav Investment and Financial Consultants Pvt. Ltd. and Anr. (supra) and K. Srikanth Singh (supra) to suggest that unless the Company itself is made an accused, there cannot be prosecution of the signatory of the cheque alone.
Thereafter, the learned Judge referred to the decision in Anil Hada and expressed that in the said case, the decision of C.V. Parekh (supra) and Sheoratan Agarwal (supra) had been referred to and, therefore, it is a binding precedent and cannot be viewed as an obiter dicta. Sirpurkar J. further proceeded to state that the principle of lex non cogit ad impossibilia would not apply. That apart, the learned Judge held that in the case at hand, it is yet to be decided as to whether the flaw was that of the Company or the Appellant herself and it could not be made out as to whether the cheque issued by the accused was issued on behalf of the Company or to discharge her personal liability. Eventually, his Lordship referred to the allegations in the complaint which are to the effect that the two accused persons, namely, Anil Hada and Aneeta Hada, used to purchase the air tickets for their clients and they had purchased for the Company from time to time and issued cheques. The accused No. 1 used to conduct the business of the Company and she also used to purchase the tickets from the complainant. On the aforesaid foundation the learned Judge opined that the basic complaint is against the two accused persons in their individual capacity and they might be purchasing tickets for their travelling company. Being of this view, he dismissed both the appeals.
10. We have heard Mr. Muneesh Malhotra, Learned Counsel for the Appellant in Criminal Appeal Nos. 838 and 842 of 2008, Dr. Abhishek Manu Singhvi, learned senior counsel for the Appellant in Criminal Appeal No. 1483 of 2009 and for the Respondent in Criminal Appeal No. 1484 of 2009, Mr. Sidharth Luthra, learned senior counsel for the Appellant in Criminal Appeal No. 1484 of 2009, Mr. Rajesh Harnal, Learned Counsel for the Respondents in Criminal Appeal Nos. 838 of 2008 and 842 of 2008, Mr. P.P. Malhotra, learned Additional Solicitor General for the Respondent in Criminal Appeal No. 1483 of 2009 and Mr. Arun Mohan, learned Amicus Curiae.
(a) The language of Section 141 of the Act being absolutely plain and clear, a finding has to be returned that the company has committed the offence and such a finding cannot be recorded unless the company is before the court, more so, when it enjoys the status of a separate legal entity. That apart, the liability of the individual as per the provision is vicarious and such culpability arises, ipso facto and ipso jure, from the fact that the individual occupies a decision making position in the corporate entity. It is patent that unless the company, the principal entity, is prosecuted as an accused, the subsidiary entity, the individual, cannot be held liable, for the language used in the provision makes the company the principal offender.
(b) The essence of vicarious liability is inextricably intertwined with the liability of the principal offender. If both are treated separately, it would amount to causing violence to the language employed in the provision.
(c) It is a fundamental principle of criminal law that a penal provision must receive strict construction. The deeming fiction has to be applied in its complete sense to have the full effect as the use of the language in the provision really ostracizes or gets away with the concepts like "dentification" "attribution" and lifting the corporate veil and, in fact, puts the directors and the officers responsible in a deemed concept compartment on certain guided parameters.
(d) The company, as per Section 141 of the Act, is the principal offender and when it is in existence, its non-impleadment will create an incurable dent in the prosecution and further, if any punishment is inflicted or an unfavourable finding is recorded, it would affect the reputation of the company which is not countenanced in law.
(e) The decision in Sheoratan Agarwal and Anr. (supra) has incorrectly distinguished the decision in C.V. Parekh (supra) and has also misconstrued the ratio laid down therein. That apart, in the said decision, a part of the provision contained in Section 10(1) of the Essential Commodities Act, 1955 (for brevity the 1955 Act has been altogether omitted as a consequence of which a patent mistake has occurred.
(g) The terms used as well as the company" in Section 141(1) of the Act cannot mean that no offence need be committed by the company to attract the vicarious liability of the officers in-charge of the management of the company because the first condition precedent is commission of the offence by a person which is the company.
(ii) The reliance placed by the Appellants on the decision in C.V. Parekh (supra) is absolutely misconceived. In the first case, the Court was considering the question of acquittal or conviction of the accused persons after considering the entire evidence led by the parties before the trial court but in the present case, the challenge has been at the threshold where summons have been issued. That apart, the 1955 Act and the Act in question operate in different fields having different legislative intents, objects and purposes and further deal with offences of various nature. In the case at hand, the new dimensions of economic growth development and revolutionary changes and the frequent commercial transactions by use of cheques are to be taken note of. Further, Section 141 creates liability for punishment of offences under Section 138 and it is a deemed liability whereas the criminal liability created for an offence under Section 7 of the 1955 Act is not a deemed offence.
(v) There is no postulate under Section 141 of the Act that the director or the signatory of the cheque cannot be separately prosecuted unless the company is arrayed as an accused. The company, as is well-known, acts through its directors or authorised officers and they cannot seek an escape route by seeking quashment of the proceedings under Section 482 of the Code of Criminal Procedure solely on the foundation that the company has not been impleaded as an accused. The words "as well as the company" assumes significance inasmuch as the deemed liability includes both the company and the officers in-charge and hence prosecution can exclusively be maintained against the directors or officers in-charge depending on the averments made in the complaint petition.
(c) the drawer of such cheque fails to make the payment of 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.
14. The main part of the provision can be segregated into three compartments, 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 unpaid, either because the amount of money standing to the credit of that account is insufficient to honour the 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 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. In the case at hand, we are not concerned with the said aspect. It will not be out of place to state that the main part of the provision deals with the basic ingredients and the proviso deals with certain circumstances and lays certain conditions where it will not be applicable. The emphasis has been laid on the factum that the cheque has to be drawn by a person on the account maintained by him and he must have issued the cheque in discharge of any debt or other liability. Section 7 of the Act defines 'drawer' to mean the maker of a bill 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.
16. 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.
17. 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.
18. 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.
19. In Halsbury's Laws of England, Volume 11(1), in paragraph 35, it has been laid down that in general, a corporation is in the same position in relation to criminal liability as a natural person and may be convicted of common law and statutory offences including those requiring mens rea.
20. In 19 Corpus Juris Secundum, in paragraph 1358, while dealing with liability in respect of criminal prosecution, it has been stated that a corporation shall be liable for criminal prosecution for crimes punishable with fine; in certain jurisdictions, a corporation cannot be convicted except as specifically provided by statute.
21. In H.L. Bolton (Engineering) Company Ltd. v. T.J. Graham & Sons Ltd. (1956) 3 All E.R. 624 Lord Denning, while dealing with the liability of a company, in his inimitable style, has expressed that a company may in many ways be likened to a human body. It has a brain and nerve centre which controls what it does. It also has hands which hold the tools and act in accordance with directions from the centre. Some of the people in the company are mere servants and agents who are nothing more than hands to do the work and cannot be said to represent the mind or will. Others are directors and managers who represent the directing mind and will of the company, and control what it does. The state of mind of these managers is the state of mind of the company and is treated by the law as such. In certain cases, where the law requires personal fault as a condition of liability in tort, the fault of the manager will be the personal fault of the company. The learned Law Lord referred to Lord Haldane's speech in Lennard's Carrying Company Ltd. v. Asiatic Petroleum Company Ltd. (1915) AC 705, 713-714; 31 T.L.R. 294 Elaborating further, he has observed that in criminal law, in cases where the law requires a guilty mind as a condition of a criminal offence, the guilty mind of the directors or the managers will render the company itself guilty.
A body corporate is a "person" to whom, amongst the various attributes it may have, there should be imputed the attribute of a mind capable of knowing and forming an intention indeed it is much too late in the day to suggest the contrary. It can only know or form an intention through its human agents, but circumstance may be such that the knowledge of the agent must be imputed to the body corporate. Counsel for the Respondents says that, although a body corporate may be capable of having an intention, it is not capable of having a criminal intention. In this particular case the intention was the intention to deceive. If, as in this case, the responsible agent of a body corporate puts forward a document knowing it to be false and intending that it should deceive. I apprehend, according to the authorities that Viscount Caldecote, L.C.J., has cited, his knowledge and intention must be imputed to the body corporate.
The courts in England have emphatically rejected the notion that a body corporate could not commit a criminal offence which was an outcome of an act of will needing a particular state of mind. The aforesaid notion has been rejected by adopting the doctrine of attribution and imputation. In other words, the criminal intent of the "alter ego" of the company/body corporate i.e. the person or group of persons that guide the business of the company, would be imputed to the corporation.
24. In Standard Charted Bank (supra), the majority has laid down the view that there is no dispute that a company is liable to be prosecuted and punished for criminal offences. Although there are earlier authorities to the fact that the corporation cannot commit a crime, the generally accepted modern rule is that a corporation may be subject to indictment and other criminal process although the criminal act may be committed through its agent. It has also been observed that there is no immunity to the companies from prosecution merely because the prosecution is in respect of offences for which the punishment is mandatory imprisonment and fine.
25. We have referred to the aforesaid authorities to highlight that the company can have criminal liability and further, if a group of persons that guide the business of the companies have the criminal intent, that would be imputed to the body corporate. In this backdrop, Section 141 of the Act has to be understood. The said provision clearly stipulates that when a person which is a company commits an offence, then certain categories of persons in charge as well as the company would be deemed to be liable for the offences under Section 138. Thus, the statutory intendment is absolutely plain.
26. As is perceptible, the provision makes the functionaries and the companies to be liable and that is by deeming fiction. A deeming fiction has its own signification.
When a statute enacts that something shall be deemed to have been done, which, in fact and truth was not done, the Court is entitled and bound to ascertain for what purposes and between what persons the statutory fiction is to be resorted to.
If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents, which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it.... The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs.
29. In The Bengal Immunity Company Ltd. v. State of Bihar and Ors. MANU/SC/0083/1955 : AIR 1955 SC 661, the majority in the Constitution Bench have opined that legal fictions are created only for some definite purpose.
It was argued that the Legislature might well have used the word "deemed" in Sub-section (4) of Section 171 not in the first of the above senses but in the second, if not the third. In our view the meaning to be attached to the word "deemed" must depend upon the context in which it is used.
31. In State of Tamil Nadu v. Arooran Sugars Ltd. MANU/SC/0426/1997 : AIR 1997 SC 1815, the Constitution Bench, while dealing with the deeming provision in a statute, ruled that the role of a provision in a statute creating legal fiction is well settled. Reference was made to The Chief Inspector of Mines and Anr. v. Lala Karam Chand Thapar Etc. MANU/SC/0382/1961 : AIR 1961 SC 838, J.K. Cotton Spinning and Weaving Mills Ltd. and Anr. v. Union of India and Ors. MANU/SC/0403/1987 : AIR 1988 SC 191, M. Venugopal v. Divisional Manager, Life Insurance Corporation of India MANU/SC/0310/1994 : (1994) 2 SCC 323 and Harish Tandon v. Addl. District Magistrate, Allahabad MANU/SC/0132/1995 : (1995) 1 SCC 537 and eventually, it was held that when a statute creates a legal fiction saying that something shall be deemed to have been done which in fact and truth has not been done, the Court has to examine and ascertain as to for what purpose and between which persons such a statutory fiction is to be resorted to and thereafter, the courts have to give full effect to such a statutory fiction and it has to be carried to its logical conclusion.
32. From the aforesaid pronouncements, the principle that can be culled out is that it is the bounden duty of the court to ascertain for what purpose the legal fiction has been created. It is also the duty of the court 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. It is because in modern legislation, the term 'deemed' has been used for manifold purposes. The object of the legislature has to be kept in mind.
It primarily falls on the drawer company and is extended to officers of the company. The normal rule in the cases involving criminal liability is against vicarious liability, that is, no one is to be held criminally liable for an act of another. This normal rule is, however, subject to exception on account of specific provision being made in the statutes extending liability to others. Section 141 of the Act is an instance of specific provision which in case an offence under Section 138 is committed by a company, extends criminal liability for dishonor of a cheque to officers of the company. Section 141 contains conditions which have to be satisfied before the liability can be extended to officers of a company. Since the provision creates criminal liability, the conditions have to be strictly complied with. The conditions are intended to ensure that a person who is sought to be made vicariously liable for an offence of which the principal accused is the company, had a role to play in relation to the incriminating act and further that such a person should know what is attributed to him to make him liable.
There is almost unanimous judicial opinion that necessary averments ought to be contained in a complaint before a person can be subjected to criminal process. A liability under Section 141 of the Act is sought to be fastened vicariously on a person connected with a Company, the principal accused being the company itself. It is a departure from the rule in criminal law against vicarious liability.
Learned counsel for the Appellant, however, sought conviction of the two Respondents on the basis of Section 10 of the Essential Commodities Act under which, if the person contravening an order made under Section 3 (which covers an order under the Iron and Steel Control Order, 1956), 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 the business of the company as well as the company, shall be deemed to be guilty of the contravention and shall be liable to be proceeded against and punished accordingly. It was urged that the two Respondents were in charge of, and were responsible to, the Company for the conduct of the business of the Company and, consequently, they must be held responsible for the sale and for thus contravening the provisions of Clause (5) of the Iron and Steel Control Order. This argument cannot be accepted, because it ignores the first condition for the applicability of Section 10 to the effect that the person contravening the order must be a company itself. In the present case, there is no finding either by the Magistrate or by the High Court that the sale in contravention of Clause (5) of the Iron and Steel Control Order was made by the Company. In fact, the Company was not charged with the offence at all. The liability of the persons in charge of the Company only arises when the contravention is by the Company itself. Since, in this case, there is no evidence and no finding that the Company contravened Clause (5) of the Iron and Steel Control Order, the two Respondents could not be held responsible. The actual contravention was by Kamdar and Vallabhadas Thacker and any contravention by them would not fasten responsibility on the Respondents.
The sentences underscored by us clearly show that what was sought to be emphasised was that there should be a finding that the contravention was by the company before the accused could be convicted and not that the company itself should have been prosecuted along with the accused. We are therefore clearly of the view that the prosecutions are maintainable and that there is nothing in Section 10 of the Essential Commodities Act which bars such prosecutions.
because it ignores the first condition for the applicability of Section 10 to the effect that the person contravening the order must be a company itself. In the present case, there is no finding either by the Magistrate or by the High Court that the sale in contravention of Clause (5) of the Iron and Steel Control Order was made by the Company and there is no evidence and no finding that the Company contravened Clause (5) of the Iron and Steel Control Order, the two Respondents could not be held responsible.
35. With greatest respect to the learned Judges in Sheoratan Agarwal (supra), the authoritative pronouncement in C.V. Parekh (supra) has not been appositely appreciated. The decision has been distinguished despite the clear dictum that the first condition for the applicability of Section 10 of the 1955 Act is that there has to be a contravention by the company itself. In our humblest view, the said analysis of the verdict is not correct. Quite apart, the decision in C.V. Parekh (supra) was under Section 10(a) of the 1955 Act and rendered by a three-Judge Bench and if such a view was going to be expressed, it would have been appropriate to refer the matter to a larger Bench. However, the two-Judge Bench chose it appropriate to distinguish the same on the rationale which we have reproduced hereinabove. We repeat with the deepest respect that we are unable to agree with the aforesaid view.
12. Thus when the drawer of the cheque who falls within the ambit of Section 138 of the Act is a human being or a body corporate or even firm, prosecution proceedings can be initiated against such drawer. In this context the phrase "as well as" used in Sub-section (1) of Section 141 of the Act has some importance. The said phrase would embroil the persons mentioned in the first category within the tentacles of the offence on a par with the offending company. Similarly the words "shall also" in Sub-section (2) are capable of bringing the third category persons additionally within the dragnet of the offence on an equal par. The effect of reading Section 141 is that when the company is the drawer of the cheque such company is the principal offender under Section 138 of the Act and the remaining persons are made offenders by virtue of the legal fiction created by the legislature as per the section. Hence the actual offence should have been committed by the company, and then alone the other two categories of persons can also become liable for the offence.
13. If the offence was committed by a company it can be punished only if the company is prosecuted. But instead of prosecuting the company if a payee opts to prosecute only the persons falling within the second or third category the payee can succeed in the case only if he succeeds in showing that the offence was actually committed by the company. In such a prosecution the accused can show that the company has not committed the offence, though such company is not made an accused, and hence the prosecuted accused is not liable to be punished. The provisions do not contain a condition that prosecution of the company is sine qua non for prosecution of the other persons who fall within the second and the third categories mentioned above. No doubt a finding that the offence was committed by the company is sine qua non for convicting those other persons. But if a company is not prosecuted due to any legal snag or otherwise, the other prosecuted persons cannot, on that score alone, escape from the penal liability created through the legal fiction envisaged in Section 141 of the Act.
We, therefore, hold that even if the prosecution proceedings against the Company were not taken or could not be continued, it is no bar for proceeding against the other persons falling within the purview of Sub-sections (1) and (2) of Section 141 of the Act.
37. We have already opined that the decision in Sheoratan Agarwal (supra) runs counter to the ratio laid down in the case of C.V. Parekh (supra) which is by a larger Bench and hence, is a binding precedent. On the aforesaid ratiocination, the decision in Anil Hada (supra) has to be treated as not laying down the correct law as far as it states that the director or any other officer can be prosecuted without impleadment of the company. Needless to emphasize, the matter would stand on a different footing where there is some legal impediment and the doctrine of lex non cogit ad impossibilia gets attracted.
Although as a pure proposition of law in the abstract the learned single Judge's view that there can be no vicarious liability of the Chairman, Vice-Chairman, Managing Director and members of the Board of Directors under sub-s.(1) or (2) of Section 47 of the Act unless there was a prosecution against Messers Modi Industries Limited, the Company owning the industrial unit, can be termed as correct, the objection raised by the Petitioners before the High Court ought to have been viewed not in isolation but in the conspectus of facts and events and not in vacuum. We have already pointed out that the technical flaw in the complaint is attributable to the failure of the industrial unit to furnish the requisite information called for by the Board. Furthermore, the legal infirmity is of such a nature which could be easily cured. Another circumstance which brings out the narrow perspective of the learned single Judge's is his failure to appreciate the fact that the averment in paragraph 2 has to be construed in the light of the averments contained in paragraphs 17, 18 and 19 which are to the effect that the Chairman, Vice-Chairman, Managing Director and members of the Board of Directors were also liable for the alleged offence committed by the Company.
Be it noted, the two-Judge Bench has correctly stated that there can be no vicarious liability unless there is a prosecution against the company owning the industrial unit but, regard being had to the factual matrix, namely, the technical fault on the part of the company to furnish the requisite information called for by the Board, directed for making a formal amendment by the applicant and substitute the name of the owning industrial unit. It is worth noting that in the said case, M/s. Modi distilleries was arrayed as a party instead of M/s Modi Industries Limited. Thus, it was a defective complaint which was curable but, a pregnant one, the law laid down as regards the primary liability of the company without which no vicarious liability can be imposed has been appositely stated.
39. It is to be borne in mind that Section 141 of the Act is concerned with the offences by the company. It makes the other persons vicariously liable for commission of an offence on the part of the company. As has been stated by us earlier, the vicarious liability gets attracted when the condition precedent laid down in Section 141 of the Act stands satisfied. There can be no dispute that as the liability is penal in nature, a strict construction of the provision would be necessitous and, in a way, the warrant.
A principle of statutory interpretation embodies the policy of the law, which is in turn based on public policy. The court presumes, unless the contrary intention appears, that the legislator intended to conform to this legal policy. A principle of statutory interpretation can therefore be described as a principle of legal policy formulated as a guide to legislative intention.
The strict construction of penal statutes seems to manifest itself in four ways: in the requirement of express language for the creation of an offence; in interpreting strictly words setting out the elements of an offence; in requiring the fulfilment to the letter of statutory conditions precedent to the infliction of punishment; and in insisting on the strict observance of technical provisions concerning criminal procedure and jurisdiction.
42. 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. In Reserve Bank of India v. Peerless General Finance and Investment Company Ltd. and Ors. MANU/SC/0073/1987 : (1987) 1 SCC 424 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 Ors. v. Rajendra Prasad Ardevi and Ors. MANU/SC/0207/2007 : (2007) 10 SCC 528 and Sarabjit Rick Singh v. Union of India MANU/SC/0041/2008 : (2008) 2 SCC 417.
44. 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.
45. 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.
46. 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. 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.
(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.
48. 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.
49. Before we part with the case, we must record our uninhibited and unreserved appreciation for the able assistance rendered by the Learned Counsel for the parties and the learned amicus curiae.
50. In the ultimate analysis, all the appeals are allowed.

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The Court distorts existing precedent to conclude that the school district’s student-message program is invalid on its face under the Establishment Clause. But even more disturbing than its holding is the tone of the Court’s opinion; it bristles with hostility to all things religious in public life. Neither the holding nor the tone of the opinion is faithful to the meaning of the Establishment Clause, when it is recalled that George Washington himself, at the request of the very Congress which passed the Bill of Rights, proclaimed a day of “public thanksgiving and prayer, to be observed by acknowledging with grateful hearts the many and signal favors of Almighty God.” Presidential Proclamation, 1 Messages and Papers of the Presidents, 1789—1897, p. 64 (J. Richardson ed. 1897).
We do not learn until late in the Court’s opinion that respondents in this case challenged the district’s student-message program at football games before it had been put into practice. As the Court explained in United States v. Salerno, 481 U.S. 739, 745 (1987), the fact that a policy might “operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid.” See also Bowen v. Kendrick, 487 U.S. 589, 612 (1988). While there is an exception to this principle in the First Amendment overbreadth context because of our concern that people may refrain from speech out of fear of prosecution, Los Angeles Police Dept. v. United Reporting Publishing Corp., 528 U.S. ___ (1999), ___ (slip op., at 5—7), there is no similar justification for Establishment Clause cases. No speech will be “chilled” by the existence of a government policy that might unconstitutionally endorse religion over nonreligion. Therefore, the question is not whether the district’s policy may be applied in violation of the Establishment Clause, but whether it inevitably will be.
The Court, venturing into the realm of prophesy, decides that it “need not wait for the inevitable” and invalidates the district’s policy on its face. See ante, at 24. To do so, it applies the most rigid version of the oft-criticized test of Lemon v. Kurtzman, 403 U.S. 602 (1971).
Lemon has had a checkered career in the decisional law of this Court. See, e.g., Lamb’s Chapel v. Center Moriches Union Free School Dist., 508 U.S. 384, 398—399 (1993) (Scalia, J., concurring in judgment) (collecting opinions criticizing Lemon); Wallace v. Jaffree, 472 U.S. 38, 108—114 (1985) (Rehnquist, J., dissenting) (stating that Lemon’s “three-part test represents a determined effort to craft a workable rule from a historically faulty doctrine; but the rule can only be as sound as the doctrine it attempts to service” (internal quotation marks omitted)); Committee for Public Ed. and Religious Liberty v. Regan, 444 U.S. 646, 671 (1980) (Stevens, J., dissenting) (deriding “the sisyphean task of trying to patch together the blurred, indistinct, and variable barrier described in Lemon”). We have even gone so far as to state that it has never been binding on us. Lynch v. Donnelly, 465 U.S. 668, 679 (1984) (“[W]e have repeatedly emphasized our unwillingness to be confined to any single test or criterion in this sensitive area… . In two cases, the Court did not even apply the Lemon ‘test’ [citing Marsh v. Chambers, 463 U.S. 783 (1983), and Larson v. Valente, 456 U.S. 228 (1982)”]). Indeed, in Lee v. Weisman, 505 U.S. 577 (1992), an opinion upon which the Court relies heavily today, we mentioned but did not feel compelled to apply the Lemon test. See also Agostini v. Felton, 521 U.S. 203, 233 (1997) (stating that Lemon’s entanglement test is merely “an aspect of the inquiry into a statute’s effect”); Hunt v. McNair, 413 U.S. 734, 741 (1973) (stating that the Lemon factors are “no more than helpful signposts”).
Even if it were appropriate to apply the Lemon test here, the district’s student-message policy should not be invalidated on its face. The Court applies Lemon and holds that the “policy is invalid on its face because it establishes an improper majoritarian election on religion, and unquestionably has the purpose and creates the perception of encouraging the delivery of prayer at a series of important school events.” Ante, at 26. The Court’s reliance on each of these conclusions misses the mark.
First, the Court misconstrues the nature of the “majoritarian election” permitted by the policy as being an election on “prayer” and “religion.” See ante, at 22, 26. To the contrary, the election permitted by the policy is a two-fold process whereby students vote first on whether to have a student speaker before football games at all, and second, if the students vote to have such a speaker, on who that speaker will be. App. 104—105. It is conceivable that the election could become one in which student candidates campaign on platforms that focus on whether or not they will pray if elected. It is also conceivable that the election could lead to a Christian prayer before 90 percent of the football games. If, upon implementation, the policy operated in this fashion, we would have a record before us to review whether the policy, as applied, violated the Establishment Clause or unduly suppressed minority viewpoints. But it is possible that the students might vote not to have a pregame speaker, in which case there would be no threat of a constitutional violation. It is also possible that the election would not focus on prayer, but on public speaking ability or social popularity. And if student campaigning did begin to focus on prayer, the school might decide to implement reasonable campaign restrictions.
But the Court ignores these possibilities by holding that merely granting the student body the power to elect a speaker that may choose to pray, “regardless of the students’ ultimate use of it, is not acceptable.” Ante, at 25. The Court so holds despite that any speech that may occur as a result of the election process here would be private, not government, speech. The elected student, not the government, would choose what to say. Support for the Court’s holding cannot be found in any of our cases. And it essentially invalidates all student elections. A newly elected student body president, or even a newly elected prom king or queen, could use opportunities for public speaking to say prayers. Under the Court’s view, the mere grant of power to the students to vote for such offices, in light of the fear that those elected might publicly pray, violates the Establishment Clause.
Second, with respect to the policy’s purpose, the Court holds that “the simple enactment of this policy, with the purpose and perception of school endorsement of student prayer, was a constitutional violation.” Ante, at 24. But the policy itself has plausible secular purposes: “[T]o solemnize the event, to promote good sportsmanship and student safety, and to establish the appropriate environment for the competition.” App. 104—105. Where a governmental body “expresses a plausible secular purpose” for an enactment, “courts should generally defer to that stated intent.” Wallace, supra, at 74—75 (O’Connor, J., concurring in judgment); see also Mueller v. Allen, 463 U.S. 388, 394—395 (1983) (stressing this Court’s “reluctance to attribute unconstitutional motives to States, particularly when a plausible secular purpose for the State’s program may be discerned from the face of the statute”). The Court grants no deference to–and appears openly hostile toward–the policy’s stated purposes, and wastes no time in concluding that they are a sham.
For example, the Court dismisses the secular purpose of solemnization by claiming that it “invites and encourages religious messages.” Ante, at 14; Cf. Lynch, 465 U. S, at 693 (O’Connor, J., concurring) (discussing the “legitimate secular purposes of solemnizing public occasions”). The Court so concludes based on its rather strange view that a “religious message is the most obvious means of solemnizing an event.” Ante, at 14. But it is easy to think of solemn messages that are not religious in nature, for example urging that a game be fought fairly. And sporting events often begin with a solemn rendition of our national anthem, with its concluding verse “And this be our motto: ‘In God is our trust.’ ” Under the Court’s logic, a public school that sponsors the singing of the national anthem before football games violates the Establishment Clause. Although the Court apparently believes that solemnizing football games is an illegitimate purpose, the voters in the school district seem to disagree. Nothing in the Establishment Clause prevents them from making this choice.
The Court bases its conclusion that the true purpose of the policy is to endorse student prayer on its view of the school district’s history of Establishment Clause violations and the context in which the policy was written, that is, as “the latest step in developing litigation brought as a challenge to institutional practices that unquestionably violated the Establishment Clause.” Ante, at 16, 17, and 22. But the context–attempted compliance with a District Court order–actually demonstrates that the school district was acting diligently to come within the governing constitutional law. The District Court ordered the school district to formulate a policy consistent with Fifth Circuit precedent, which permitted a school district to have a prayer-only policy. See Jones v. Clear Creek Independent School Dist., 977 F.2d 963 (CA5 1992). But the school district went further than required by the District Court order and eventually settled on a policy that gave the student speaker a choice to deliver either an invocation or a message. In so doing, the school district exhibited a willingness to comply with, and exceed, Establishment Clause restrictions. Thus, the policy cannot be viewed as having a sectarian purpose.
The Court also relies on our decision in Lee v. Weisman, 505 U.S. 577 (1992), to support its conclusion. In Lee, we concluded that the content of the speech at issue, a graduation prayer given by a rabbi, was “directed and controlled” by a school official. Id., at 588. In other words, at issue in Lee was government speech. Here, by contrast, the potential speech at issue, if the policy had been allowed to proceed, would be a message or invocation selected or created by a student. That is, if there were speech at issue here, it would be private speech. The “crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect,” applies with particular force to the question of endorsement. Board of Ed. of Westside Community Schools (Dist. 66) v. Mergens, 496 U.S. 226, 250 (1990) (plurality opinion) (emphasis in original).
Had the policy been put into practice, the students may have chosen a speaker according to wholly secular criteria–like good public speaking skills or social popularity–and the student speaker may have chosen, on her own accord, to deliver a religious message. Such an application of the policy would likely pass constitutional muster. See Lee, supra, at 630, n. 8 (Souter, J., concurring) (“If the State had chosen its graduation day speakers according to wholly secular criteria, and if one of those speakers (not a state actor) had individually chosen to deliver a religious message, it would be harder to attribute an endorsement of religion to the State”).
Finally, the Court seems to demand that a government policy be completely neutral as to content or be considered one that endorses religion. See ante, at 14. This is undoubtedly a new requirement, as our Establishment Clause jurisprudence simply does not mandate “content neutrality.” That concept is found in our First Amendment speech cases and is used as a guide for determining when we apply strict scrutiny. For example, we look to “content neutrality” in reviewing loudness restrictions imposed on speech in public forums, see Ward v. Rock Against Racism, 491 U.S. 781 (1989), and regulations against picketing, see Boos v. Barry, 485 U.S. 312 (1988). The Court seems to think that the fact that the policy is not content neutral somehow controls the Establishment Clause inquiry. See ante, at 14.
But even our speech jurisprudence would not require that all public school actions with respect to student speech be content neutral. See, e.g., Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675 (1986) (allowing the imposition of sanctions against a student speaker who, in nominating a fellow student for elective office during an assembly, referred to his candidate in terms of an elaborate sexually explicit metaphor). Schools do not violate the First Amendment every time they restrict student speech to certain categories. But under the Court’s view, a school policy under which the student body president is to solemnize the graduation ceremony by giving a favorable introduction to the guest speaker would be facially unconstitutional. Solemnization “invites and encourages” prayer and the policy’s content limitations prohibit the student body president from giving a solemn, yet non-religious, message like “commentary on United States foreign policy.” See ante, at 14.
^ . The Court rightly points out that in facial challenges in the Establishment Clause context, we have looked to Lemon’s three factors to “guid[e] [t]he general nature of our inquiry.” Ante, at 22—23 (internal quotation marks omitted) (citing Bowen v. Kendrick, 487 U.S. 589, 602 (1988)). In Bowen, we looked to Lemon as such a guide and determined that a federal grant program was not invalid on its face, noting that “[i]t has not been the Court’s practice, in considering facial challenges to statutes of this kind, to strike them down in anticipation that particular applications may result in unconstitutional use of funds.” 487 U.S., at 612 (internal quotation marks omitted). But here the Court, rather than look to Lemon as a guide, applies Lemon’s factors stringently and ignores Bowen’s admonition that mere anticipation of unconstitutional applications does not warrant striking a policy on its face.
^ . The Court attempts to support its misinterpretation of the nature of the election process by noting that the district stipulated to facts about the most recent election. See ante, at 25, n. 24. Of course, the most recent election was conducted under the previous policy–a policy that required an elected student speaker to give a pregame invocation. See App. 65—66, 99—100. There has not been an election under the policy at issue here, which expressly allows the student speaker to give a message as opposed to an invocation.
^ . The Court’s reliance on language regarding the student referendum in Board of Regents of Univ. of Wis. System v. Southworth, 529 U.S. ___ (2000), to support its conclusion with respect to the election process is misplaced. That case primarily concerned free speech, and, more particularly, mandated financial support of a public forum. But as stated above, if this case were in the “as applied” context and we were presented with the appropriate record, our language in Southworth could become more applicable. In fact, Southworth itself demonstrates the impropriety of making a decision with respect to the election process without a record of its operation. There we remanded in part for a determination of how the referendum functions. See id., at __ (slip op., at 16—17).
^ . The Court also determines that the use of the term “invocation” in the policy is an express endorsement of that type of message over all others. See ante, at 14—15. A less cynical view of the policy’s text is that it permits many types of messages, including invocations. That a policy tolerates religion does not mean that it improperly endorses it. Indeed, as the majority reluctantly admits, the Free Exercise Clause mandates such tolerance. See ante, at 21 (“[N]othing in the Constitution as interpreted by this Court prohibits any public school student from voluntarily praying at any time before, during, or after the schoolday”); see also Lynch v. Donnelly, 465 U.S. 668, 673 (1984) (“Nor does the Constitution require complete separation of church and state; it affirmatively mandates accommodation, not merely tolerance, of all religions, and forbids hostility toward any”).
^ . Wallace v. Jaffree, 472 U.S. 38 (1985), is distinguishable on these grounds. There we struck down an Alabama statute that added an express reference to prayer to an existing statute providing a moment of silence for meditation. Id., at 59. Here the school district added a secular alternative to a policy that originally provided only for prayer. More importantly, in Wallace, there was “unrebutted evidence” that pointed to a wholly religious purpose, id., at 58, and Alabama “conceded in the courts below that the purpose of the statute was to make prayer part of daily classroom activity,” id., at 77—78 (O’Connor, J., concurring in judgment). There is no such evidence or concession here.

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Posted On July 7, 1876 by &filed under Calcutta High Court, High Court.
1. This case, which has been argued in the settlement of issues, raises many troublesome and difficult questions.
2. Dwarkanath Tagore, who died about the year 1846, left three sons–Debendronath, who is still living and is the principal defendant in this suit; Greendronath, who died in 1854, leaving two sons, Ganendronath, who died in 1869, and Ganendronath, who is a defendant in this suit, and Nogendronath, who died in 1858, without issue, leaving a widow, who is the plaintiff in this suit. Dwarkanath Tagore, by his will made in 1843, appointed a Mr. Gordon and his three sons his executors (all of whom, except Nogendro, proved the will), and, after thereby confirming a certain deed of settlement of the 20th of August 1840, making certain devises and bequests (including a devise of a piece of land and a bequest of Rs. 20,000, for the purposes of building a house thereon, to his son Nogendronath), the testator Dwarkanath gave the beneficial interest in the residue of his real and personal estate in effect, and according, as I am informed, to the construction placed on such residuary devise by the Supreme Court in 1847, to his three sons absolutely, as tenants in common. I shall state later on my reasons for considering that the executors of Dwarkanath’s will took there under the whole of his residuary estate as trustees.
3. By the settlement of the 20th of August 1840, referred to in his will, Dwarkanath conveyed very valuable immoveable estate, the whole of it outside the jurisdiction of this Court, to trustees, who, under a subsequent appointment, are now represented by the defendants Sarodaprosad Gangooly, Nilcomul Mookerjea, and Nobin Chandra Mookerjea, whom I shall call the settlement trustees. The trusts of the settlement were that the trustees should, after the decease of the testator Dwarkanath, pay the rents of the lands between his three sons, in equal shares, during their lives, and immediately after the decease of any of them, upon trust, to pay the share of the son so dying to his children, being a son or sons, in equal shares; and the deed provided that if the sons of Dwarkanath, or any of them, or any of their respective sons, should die without having male issue, and without having duly adopted a son but leaving a widow, then the trustees should pay, out of the rents of the settled property, a sufficient sum for the suitable support of such widow during her life and for providing her with a suitable residence.
4. The three sons of Dwarkanath, after his decease, and during their joint lives, received the income of the settled property in equal shares, and after Greendronath’s decease, in 1854, it seems to have been assumed by all parties that his two sons, Ganendronath and Ganendronath, were entitled to Greendronath’s one-third share, under the deed of settlement.
6. A document purporting to be a former will has been produced by the plaintiff in this suit under somewhat peculiar circumstances. She does not admit it to be the former will referred to in her husband’s last will, but the defendants rely upon it. I think, under the circumstances, and at this stage of the case, I am bound to assume that the document so produced is the former will referred to by Nogendro.
7. After finding that the devise in this will to Ganendro gave him no interest in Nogendro’s residuary property, or in anything but the specific items enumerated in the schedule thereto, His Lordship continued.
8. It is to be particularly noticed that the appointment in the admitted will of Debendro and Ganendro as executors is of a very restricted character; whatever may be the exact nature of the interest or power of a Hindu executor appointed by will–whether, as argued on behalf of the plaintiff, he takes no estate, or whether, as argued on behalf of Debendro, he sufficiently represents the entire estate of a testator–it seems to me that, in this particular will, Debendro and Ganendro, though called executors, were appointed only for a special purpose, and for a limited period,–that is to say, only to look after, and take care of, the natural or adopted son of the testator during his minority, and only so far as concerned the property in settlement. They were, in my opinion, only constituted guardians and manager for the son (if any), and took, under the will, no further interest or powers as executors.
In my opinion, the present plaintiff is not bound by the decree, or proceedings, in the creditor’s suit, and the only property of Nogendro which could be affected thereby is the property devised by Nogendro to Ganendro, and any debts of Nogendro which Ganendro was authorised to collect and get in under the certificate granted to him by the Alipore Court. Such certificate applied only to debts and moveable estate, and did not give Ganendro any interest in, or any authority to receive, or represent, immoveable estate; as was decided by Silt Barnes Peacock in the two judgments in Awkinfee v. Mee Nay 8 W.R. 1 and Sivinthia Pellai v. Mootooswamy 8 W.R. 2 with respect to a similar certificate under the Act of 1860 : and if Debendro and Ganendro have no right to recover and no interest in Nogendro’s immoveable estate, any decree made in a suit in which they were the only defendants could not affect the immoveable estate or the person really interested in such immoveable estate. The plaintiff, it is true, has asked that this suit may be taken, so far as it relates to the same subject-matter, as supplemental to Bazlur Rahim’s suit. But even if it could be so taken, I think, under the circumstances, she is not absolutely bound by that portion of the prayer.
10. Ganendronath died in 1869 without issue, having by his will appointed Ganendronath, Jogesh Prokash Gangooly and Nilcomul Mookerjea executors, and leaving a widow, Samasoondery, who has been made a defendant, but who has not appeared, to this suit.
11. The present plaintiff, on the 12th July 1875, filed her plaint in this suit against Debendronath and his seven sons, Gunendronath and his three sons, Ganendro’s widow, Ganendro’s executors; and the three trustees of the deed of settlement. In her plaint she charges that her adoption of Gunendro was without her husband’s authority, and therefore void, and that Ganendro has never acted upon it; that Debendro is in possession of the whole of Dwarkanath’s estate, and has filed no accounts since 1848; that Debendro has bought up the rights of Nogendro’s creditors at reduced prices; that Debendro and Gunendro are in possession of the piece of land specifically devised by Dwarkanath to Nogendro, and of certain silk factories, either belonging to Nogendro’s estate, or purchased there from, which last appear to be a part of the property mentioned in the schedule to Nogendro’s first will; that she is not bound by the decree of the 24th of September 1860; that she, as widow of Nogendro, is entitled, subject to the life-interests created by the said settlement, to one-third of the property therein comprised. She accordingly prays for a declaration that she is not bound by the decree of the 24th September 1860, and that the settlement deed may be now construed, and that it may be declared that she is entitled to one-third part of Dwarkanath’s residuary estate and of the settled property; that accounts of the settled property and of Dwarkanath’s estate may be taken, and if necessary, that his estate should be administered by the Court; that, so far as Nogendro’s estate is unadministered, it may be administered by the Court; that, in respect of any purchases by Debendro of debts due by such estate, he should only rank as a creditor for the amounts expended by him in such purchases; and that the present suit, so far as it relates to the same subject-matter, may be taken as supplemental to Bazlur Rahim’s suit. All the defendants, except the widow of Ganendro and one of the sons of Debendro, have appeared. With those exceptions, written statements’ have been put in by all the defendants. The plaintiff at this hearing has asked that her suit may be dismissed as against the two defendants who have not appeared, and may be dismissed with costs, as against the sons of Debendro and Gunendro; and I made an order accordingly.
12. The suit came on to be heard before me in settlement of issues, and Debendro and Ganendro set up three principal grounds why the suit should be dismissed: 1st, that it is multifarious; 2nd, that the plaintiff has no right to sue in respect of any of the matters complained of by her; and 3rd, that the plaintiff is barred by limitation and acquiescence.
13. I propose to take these objections in their order.
14. The plaintiff asks relief in respect of three different matters: the administration of the estate of Dwarkanath; the construction of the deed of settlement; and an administration of Nogendro’s estate, which might also involve an administration of Ganendro’s estate. Considerable stress has been placed on the fact that, if the plaintiff can combine in one suit these several subjects, she will be able to get a decree with respect to the settled property, which she could not get if she sued separately for an administration of that property, inasmuch as the whole of it is without the local limits of this Court’s jurisdiction. This objection would, no doubt, have great force if the plaintiff was attempting to deal only prospectively with the property outside Calcutta. But in fact her case is that, since 1860, the trustees of the settlement have paid a particular share of the rents of the settled property to Debendro, as exectuor of Dwarkanath’s will; and her principal object is to get a construction of the settlement with respect to the rents so paid, which construction, no doubt, would incidentally affect future rents, and would be a binding decision on title.
15. Supposing the plaintiff had, in fact, any right or interest under the deed of settlement, and having regard to the wider and more liberal view latterly taken with respect to objection for multifariousness, as shown in the cases of Pointon v. Pointon L.R. 12 Eq. 537 and Coates v. Legard L.E. 19 Eq. 56. I should not have been disposed to dismiss the plaintiff’s suit on that ground. But in fact the plaintiff has, in my opinion, no right or interest under the settlement deed, beyond what she has already received, and is now in receipt of, under the decree of the 24th of September 1860. And I think she has neither the right, nor that it would be any material advantage to her, to go behind that decree. She has not the right, because, in my view of the proper construction to be placed on that deed, she was only entitled to maintenance and a residence there under; and, with that exception, the sole person who could sue the trustees, or be affected by any decree made against them, was Debendro–1st, in his character of surviving tenant for life; and, 2nd, as executor and trustee of his father Dwarkanath’s will, to whom alone the settlement trustees were liable to account; and the only substantial injury which, as a claimant upon Dwarkanath’s estate, she may have received, is that a third share was given directly to Ganendro’s sons, which probably would not have been given if the Court had had the advantage of considering more recent decisions, the gift in remainder being to a class, some of the members of which might not be, and, in fact, were not, in existence at the time of the settlor’s death. But this construction, if erroneous, may probably be, to a great extent, cured when Debendro’s one-third comes to be dealt with, on his death.
16. I think, therefore, that the plaintiff has no cause of action against the settlement trustees, and that her suit must be dismissed against them with costs.
17. The second main objection is that the plaintiff has no right to sue in respect of any of the matters complained of by her,–1st, because the whole of Nogendro’s estate was devised by him to Ganendro; 2nd, because Gunendro having been adopted by her in fact, is alone entitled to Nogendro’s estate, although his adoption may not have constituted him a cestui que trust under the settlement deed; and 3rd, because the plaintiff has not been constituted the legal personal representative of Nogendra by certificate, or letters of administration, and is therefore under Section 2 of Act XXVII of 1860 incompetent to sue.
18. On the first of these objections, I have already held that the devise to Ganendro in Nogendro’s will was specific, and not residuary.
19. With respect to the second objection, the parties would be entitled to an issue if Gunendro claimed to be such adopted son. But this objection is only raised by Debendro, for Gunendro absolutely disclaims the status of adopted son; and as he is a party to this suit, and Debendro would consequently be protected by any order made in the suit, I do not think Debendro alone can claim to raise the issue. And, upon the facts stated, it seems to me that it would be impossible to prove or establish such adoption; for a suit in which Gunendro attempted to establish such status has been already dismissed as against the present plaintiff. And, again, if such adoption had been relied on in Debendro’s suit on the settlement, the decree of 1860, directing payment to the executor of Dwarkanath, would in all probability have noticed it, inasmuch as it did notice the right of Debendro and the rights of Ganendro and Gunendro representing their father, as beneficially interested in Dwarka-nath’s residuary estate. It certainly would require the clearest possible evidence to make me believe that after Nogendro had so carefully by his will limited the selection of an adopted son, he would have given verbal permission to his minor wife to adopt a son of her own exclusive choice; for that is the allegation in the petition put in for her in the Alipore Court, and to my mind it is quite impossible to read the agreement of March 1859 between Ganendro and his mother, and the two petitions filed at Alipore on behalf of the plaintiff, and to believe that the alleged verbal permission to adopt was ever in fact given by Nogendro to the plaintiff. I am, therefore, of opinion, at all events at the present stage of the case, that this objection cannot prevail.
20. With respect to the next objection, that the plaintiff is incompetent to sue, inasmuch as she has neither obtained a certificate nor letters of administration to Nogendro’s estate, it appears to me that Section 2 of Act XXVII of 1860 applies to debts and not to claims against executors or trustees. At all events, it does not apply to claims for immoveable property, and therefore, so far as may relate to the residuary immoveable property of Dwarkanath, the plaintiff is not thereby disabled from suing.
21. I now come to the most serious objection of all, namely, that the plaintiff, and, indeed, that any representative of Nogendro, is barred under the Limitation Act. For the objection as to acquiescence as I take it only relates to the decree of 1860, by which I have already held that the plaintiff is bound.
22. Apart from authority, I should have had considerable doubt as to whether the word “legacy,” even in Clause 122 of the Indian Limitation Act, applied to a share of residue, the words “distributive share” in that clause applying presumably to undisposed of estate only. But in Prior v. Horniblow 2 Y. & C. Ex. Rep. 200 Mr. Baron Alderson decided unhesitatingly that the word “legacy,” in 3 & 4 Wm. IV. c. 27 Section 40 included a share of residue. This seems to have been rather a forced construction for two reasons–first, because a share of residue is not, like a legacy, a liquidated amount, but may depend upon long and complicated accounts; and secondly, because the English statute clearly does not provide for the analogous case of a demand by next-of-kin for a distributive share against an administrator. And it is to be observed that V.C. Knight Bruce in Adams v. Barry 2 Collyer 285 see p. 293 said: “With regard to the case of Prior v. Hornibloiv 2 Y.& C. Ex. Rep. 200 I am not entirely free from doubt, but I am not aware of any decision contradicting it, and I ought not to decide inconsistently with it, unless having a clear opinion that it is not right, which clear opinion I cannot say that I have.” But Prior v. Horniblow 2 Y.& C. Ex. Rep. 200 has never been overruled, and in fact it may be said to have obtained legislative sanction, inasmuch as by Section 13 of 23 & 24 Vict. c. 38 claims of next-of-kin against administrators are barred in the same way as legatees under the former statute. I am therefore bound to hold that Clause 122 of the Indian Limitation Act, which applies not only to a legacy, but also to a distributive share of the moveable property of a testator or intestate, includes a share of the residue of a testator’s moveable property; and therefore that the plaintiff is not entitled to an account of Dwarkanath’s moveable property. It must be observed, however, that Clause 122 applies only to moveable property and the resulting trust under the settlement is undisposed of immoveable estate, which would continue immoveable estate in the hands of Dwarkanath’s trustee.
23. The question then arises whether Debendronath, as to immoveable estate, is to be treated as an express trustee under the Act; or whether the plaintiff’s claim for immoveable estate is regulated by Clause 145, which gives a period of twelve years from the time that possession became adverse. In either case, it seems to me she would be entitled to an account against Debendro for even in the latter case, his possession can hardly be said to have been adverse while any debts of Dwarkanath remained unpaid, and there was no other estate where out to pay them. And it will be remembered that, by the decree of the 15th May 1860, Debendro specially took his one-third share under the decree, subject to the payment of Dwarkanath’s debts and legacies.
24. But I think that upon the true construction of Dwarkanath’s will, Debendro must be considered to be an express trustee. For Debendro, Ganendro, and Nogendro were nominated “executors and trustees”; and by his will, Dwarkanath made a number of provisions for strangers, which were to be satisfied at the choice of his executors, either by the appropriation of parts of the testator’s own immoveable estate, or by purchases out of his moveable estate. To make these appropriations, the trustees must necessarily be trustees of the testator’s immoveable estate, and until these provisions were completed, the claims of the residuary devisees could not be satisfied. The case appears to me to fall within the rule of construction to be found, with the authorities for it, at pages 281 and 282 of the second volume of Jarman on Wills (3rd edition) and at pages 191, and 192 of Lewin on Trusts (6th edition) that if a testator appoints persons to be his executors and trustees and directs them to do certain acts which can only be done by the owners of his residuary estate, the trustees will take such estate, although there be no express devise to them. And this seems to be supported by the decree of the Supreme Court in September 1860, which directed the payment of the surplus rents to Debendro as executor of Dwarkanath; and indeed, in the present case, it was one of the arguments of the defendants, that the plaintiff was not entitled to sue the settlement trustees at first hand, and that they could only be approached through Dwarkanath’s trustee.
27. But, upon the whole case, I am of opinion that the plaintiff is entitled to a general account of Dwarkanath’s residuary immoveable estate; and that she is barred by limitation from claiming an account of a share in his residuary moveable estate, and from claiming any pecuniary legacy, or specific devise, by Dwarkanath to her husband.
28. I am also of opinion that she is not bound by the decree in Bazlur Rahim’s suit; and that, therefore, it is unnecessary, at this stage of the case at all events, to deal with Debendro’s purchases of the debts proved in that suit.
29. And whether the plaintiff is entitled to an unlimited account against Debendro as an express trustee, or to a limited account under Clause 145 of the Limitation Act, or only in respect of payments made to Debendro under the decree of September 1860, and within twelve years from the time of instituting this suit, in any of these three cases, if Debendro claims that any part of the property so to be accounted for has been needed for payment of Dwarkanath’s debts or legacies, general accounts of both the moveable and immoveable estate of Dwarkanath must be taken by the Court, to prove whether, and to what extent, Debendro is liable to the plaintiff for the residuary immoveable property so to be accounted for.

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