2008 (12) TMI 824 - HC - Indian Laws

Summary

Issues Involved:
1. Summoning order validity in three complaint cases.
2. Liability of individuals who are neither the drawer nor signatories of the dishonored cheques.
3. Vicarious liability of directors under Section 138 r/w Section 141 & 142 of the N.I. Act.
4. Resignation of directors and its effect on liability.

Issue-wise Detailed Analysis:

1. Summoning Order Validity in Three Complaint Cases:
The judgment addresses three separate petitions challenging the summoning orders passed by the Metropolitan Magistrate in three complaint cases. The common ground for challenging the summoning orders is that the petitioners are neither the drawer nor the signatories of the dishonored cheques.

2. Liability of Individuals Who Are Neither the Drawer Nor Signatories of the Dishonored Cheques:
In all three cases, the petitioners argued that they cannot be held liable under Section 138 of the N.I. Act as they were neither the drawer nor the signatories of the dishonored cheques. The court observed that Section 138 clearly states that a complaint can be maintained only against a person who is a drawer of the cheque and who has drawn the cheque on an account maintained by him. The court concluded that since the petitioners were not the drawers or signatories of the cheques, the complaints against them under Section 138 N.I. Act cannot be maintained.

3. Vicarious Liability of Directors Under Section 138 r/w Section 141 & 142 of the N.I. Act:
The court discussed the concept of vicarious liability under Section 141 of the N.I. Act, which creates a legal fiction whereby every person who was in charge and responsible for the conduct of the business of the company at the time of the commission of the offence can be held liable. However, the court emphasized that for vicarious liability to be fastened, the principal offender must be the company itself. The court referred to various judgments, including the Supreme Court's decision in SMS Pharmaceuticals Ltd. v. Neeta Bhalla, to highlight that necessary averments must be made in the complaint to implicate any person under Section 141.

4. Resignation of Directors and Its Effect on Liability:
In Crl MC No. 1597/2007 and Crl MC No. 1637/2007, the petitioners had resigned from the company before the issuance of the dishonored cheques. The court noted that the resignation of a director is effective from the date it is submitted and accepted by the company. Since the petitioners had resigned before the issuance of the cheques, they could not be held liable for the dishonored cheques. The court referred to the legal position that a director's duty is to inform the company about the resignation, and it is the company's responsibility to complete the formalities with the Registrar of Companies.

Separate Judgments Delivered:
The court delivered separate judgments for each petition:
- Crl MC No. 2667/2007: The petitioner, being a director at the time of the offence and having written a letter acknowledging the debt, was not held liable as the cheques were drawn by another director in his individual capacity. The summoning order was quashed, and the complaint was dismissed.
- Crl MC No. 1597/2007: The petitioner had resigned before the issuance of the cheques, which were drawn by another individual. The summoning order was quashed, and the complaint was dismissed.
- Crl MC No. 1637/2007: Similar to the previous case, the petitioner had resigned before the issuance of the cheques, and the summoning order was quashed, and the complaint was dismissed.

Conclusion:
The court allowed all three petitions, quashing the summoning orders and dismissing the complaints against the petitioners. The judgment emphasized the importance of specific averments in the complaint to hold individuals vicariously liable under Section 141 of the N.I. Act and clarified the effect of a director's resignation on liability for dishonored cheques.