9911796707
TMI Blog2006 (9) TMI 490X X X X Extracts X X X X X X X X Extracts X X X X ..... an Magistrate, Bangalore wherein Appellants were described as Accused Nos. 6 and 8. In the said complaint petitions, it was categorically stated that the company which had been dealing with imparting of computer education in rural areas represented by its Managing Director, Chairman,Vice-Chairman and other Directors borrowed a sum of Rs. 2,25,000/- from the Respondent on an interest of 24% per annum. Towards payment of the said loan, the accused had issued two cheques on 23.6.2001 and 30.6.2001 for a sum of Rs. 1,24,406/- each which upon being presented were dishonoured as the company did not have sufficient fund. In the complaint petition, it was averred: "7) The complainant submits that the accused persons have failed to clear the liabil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... affairs of the business of the company is to be decided based on the material on record collected during the course of trial." Section 138 of the Negotiable Instruments Act provides that where a cheque drawn by a person is returned by the bank unpaid on the grounds specified therein, the person who had drawn the said cheque shall be deemed to have committed an offence thereunder. Section 139 provides for a presumption in favour of a holder of a negotiable instrument. Section 141 of the Act provides for offences by a company. Sub-section (1) of Section 141 reads as under: "141. Offences by companies.\027(1) If the person committing an offence under section 138 is a company, every person who, at the time the offence was committed, was in ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so far as a company registered or incorporated under the Companies Act, 1956 is concerned only if the requisite statements, which are required to be averred in the complaint petition, are made so as to make the accused therein vicariously liable for the offence committed by the company. Before a person can be made vicariously liable, strict compliance of the statutory requirements would be insisted. Not only the averments made in paragraph 7 of the complaint petitions does not meet the said statutory requirements, the sworn statement of the witness made by the son of Respondent herein, does not contain any statement that Appellants were in charge of the business of the company. In a case where the court is required to issue summons which wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re in charge of and were responsible to the firm for the conduct of the business of the firm. These may be sleeping partners who are not required to take any part in the business of the firm; they may be ladies and others who may not know anything about the business of the firm. The primary responsibility is on the complainant to make necessary averments in the complaint so as to make the accused vicariously liable. For fastening the criminal liability, there is no presumption that every partner knows about the transaction. The obligation of the appellants to prove that at the time the offence was committed they were not in charge of and were not responsible to the firm for the conduct of the business of the firm, would arise only when firs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t be said to be satisfied. (b) The answer to the question posed in sub-para (b) has to be in the negative. Merely being a director of a company is not sufficient to make the person liable under Section 141 of the Act. A director in a company cannot be deemed to be in charge of and responsible to the company for the conduct of its business. The requirement of Section 141 is that the person sought to be made liable should be in charge of and responsible for the conduct of the business of the company at the relevant time. This has to be averred as a fact as there is no deemed liability of a director in such cases." As the law laid down in the aforementioned decisions are clearly attracted in the instant case, we are of the opinion that the i ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
