9911796707
TMI Blog1998 (12) TMI 557X X X X Extracts X X X X X X X X Extracts X X X X ..... d for the petitioners in all these petitions raised three contentions. Firstly, that the directors, i.e., the petitioners of the accused-company had resigned before issuance of the cheque. Secondly, the complainant did not prima facie prove that the petitioner-directors were responsible for the day-to-day business of the company as required under section 141 of the Act. Thirdly, he contended that the complaint was filed without getting acknowledgment from the postal department in respect of the notices served upon the accused under section 138 and hence, there was nothing before the complainant to show that the complaint was filed after the expiry of the 15 days period from the date of service of the notice. 3. Mr. Jagtiani, on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15 days period (in the absence of postal acknowledgement with the complainant) is a question of fact which can only be decided by the magistrate at the time of the trial. Secondly, there are allegations in the complaint that the present petitioners were directors of the original accused No. 1 and were in-charge of the day-to-day affairs of the accused-company. The same statement was made by the complainant in his verification statement and, therefore, as rightly argued by Mr. Jagtiani - the complaint as against these petitioners cannot be dismissed on this ground. 5. The crucial question is whether or not the directors liability under section 138 arises in these cases because of the resignation. So far as the petitioner, K.M. Poddar is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of no consequence. So far as this part of the argument of Mr. Mundergi was concerned, Mr. Jagtiani contended that there is a specific reference in the complaint in para 3 ( e.g., in Writ Petition No. 1067 of 1998) regarding the agreement dated 17-9-1994, and consequently, the complainant according to Mr. Jagtiani was entitled at the time of trial to produce the said agreement and prove the contents of the agreement in addition to what was stated in the complaint. I find considerable force in this argument. Admittedly, the liability of the accused to pay lease rent to the complainant arose pursuant to that agreement dated 17-9-1994, and since there is a reference to the said agreement in the complaint, the complainant is at liberty to rely ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contend that even though he was a Chairman, he was not in-charge of the day-to-day affairs of the company. 8. Mr. Mundergi in support of his contentions relied upon the judgments in Municipal Corpn. of Delhi v. Ram Kishan Rohtagi AIR 1983 SC 67 and State of Haryana v. Brij Lal Mittal [1998] 3 Comp. LJ 1 (SC). 9. In Ram Kishan Rohtagi s case ( supra ), the Supreme Court has consi-dered its earlier judgment in Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi AIR 1976 SC 1947, where while considering the scope of sections 202 and 204 and the powers of the High Court under section 482 of the Code of Criminal Procedure, 1974, it has laid down guidelines of which proceedings could be quashed. These guidelines are as under : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said that the allegations made in the complaint and the statement made by the complainant on oath make out absolutely no case against the accused. It cannot also be said that the complaint does not disclose the essential ingredients of the offence which is alleged against the accused. As rightly argued by Mr. Jagtiani at the time of issuing the process, the Magistrate has before him the complaint and the statement of the complainant recorded on oath and, therefore, since in the complaint and in the verification statement, the complainant has specifically given the essential ingredients of section 141 and has made a statement on oath in that regard, the complainant succeeds in making out a prima facie case for issuance of process, and it c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Inspector appraised those firms/company of his having purchased the drugs from the firm and the reports of the analyst." (p. 2) 13. From the aforesaid facts, it will be clear that the directors of the manufacturing company were made accused by the Drug Inspector mechanically, and only upon information being given to him regarding them by the main accused Naresh Medical Agencies. It is in this background that the Supreme Court while considering the provisions of the Drugs and Cosmetics Act held that the complainant was unable to make out any case against the respondent-directors because there was merely a bald statement regarding the role of the directors. However, in the instant case, not only is there a statement of the complainan ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
