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TMI Blog2017 (12) TMI 391X X X X Extracts X X X X X X X X Extracts X X X X ..... as set aside. 3. Learned counsel for the petitioner submits that a cheque was given by the company namely N.B. Plantation Limited in lieu of the maturity of amount of bond. However, when the cheque was lodged with the Bank, the same was dishonored with an endorsement that the account was closed and no averment was there in the account. Consequently, a complaint was filed under Section 138 of the Act, 1881 and the Court of JMFC on such complaint had taken cognizance against all the accused named therein. Thereafter, one of the respondent against whom the cognizance was taken had filed a revision on the grounds that no averments were made against the applicant as to what was the role played by that accused for issuance of summons. On such re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 138 of the Act, would show that the omnibus allegations have been made against Sudhir Pandey. The complainant has not made any specific statement in the complaint under Section 138 of the N.I. Act that respondent Sudhir Pandey was in any way responsible at the relevant time for the affairs of company and was at the helm of affairs of the company to issue the cheques on behalf of the company to the complainant. It is only the company has been made a party along with two others. The averments also do not show that Ms. Sudhir Pandey has issued the cheque for & on behalf of the company. 5. The Supreme Court in S.M.S. Pharmaceuticals Ltd. Vs. Neeta Bhalla & another AIR 2005 SC 3512 has held as under in para 19 & 20:- "19. To su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 141 that at the time the offence was committed, the person accused was in charge of, and responsible for the conduct of business of the company. This averment is an essential requirement of Section 141 and has to be made in a complaint. Without this averment being made in a complaint, the requirements of Section 141 cannot be said to be satisfied. (b) The answer to the question posed in sub-para (b) has to be in 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 liab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bhalla 2005 (8) SCC 89. In the said case, it has been opined that the criminal liability on account of dishonour of cheque primarily falls on the drawee company and is extended to the officers of the company and as there is a specific provision extending the liability to the officers, the conditions incorporated in Section 141 are to be satisfied." 7. The perusal of the complaint in this case under Section 138 of the Act, 1881 would show that three persons i.e. (1) Sandeep Maheshwari, (2) Manager, N.B. Plantations Limited & (3) Shri Sudhir Pandey, have been made accused. All the allegations of complainant under Section 138 of the N.I. Act would show that averments were made that the purchase of the bond was made through the Sudhir Pandey ..... X X X X Extracts X X X X X X X X Extracts X X X X
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