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TMI Blog2012 (2) TMI 675X X X X Extracts X X X X X X X X Extracts X X X X ..... per the case of the complainant are as under: That the complainant-company is a public limited company registered under the Companies Act, 1956 and is engaged in the business of chemicals, fertilizer, etc., and the accused-company with whom the complainant-company had business dealings and a regular customer of the complainant-company was purchasing Caprolactam used for manufacturing Nylon Filament Yarn and normal credit facility was given in terms of the business arrangement. Supply of the goods/materials as above was made and against the said supply post dated cheques and specific amount on various dates were issued. Thus, cheques worth ₹ 10,63,88,760 were not drawn by the accused-company in favour of the complainant-company and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s done on behalf of accused-company No. 14 and are responsible for all the financial affairs and administration of accused-company No. 14. 3. Paragraph 8 contained different cheque numbers, date on which such cheques were issued and for the amount mentioned in each of the cheque and paragraph 10 of the complaint specifically averred, mischievous intention, deliberate and mala fide intention on the part of the accused to issue cheque and thereafter upon depositing the cheques it came to be dishonoured and so returned unpaid on the ground of closed account. Since dishonoured intention to cheat the complainant knowingly and willingly by the accused, the above complaint came to be filed in January, 1996. The complainant even while verifying ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d., AIR 2010 SC 2835 : [2011] 163 CC 398 (SC). (4) Girdhari Lal Gupta v. D.H. Mehta, AIR 1971 SC 2162 5. The decision in the case of S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla [2005] 127 CC 563 (SC) : [2005] 3 GLH 513, the director of the company is in charge of or conduct of business. Another decision in the case of Central Bank of India v. Asian Global Ltd., AIR 2010 SC 2835 : [2011] 163 CC 398 (SC), a case where the applicant had filed discharge petition before the competent court and the court below rejected such application on an erroneous ground and action in absence of specific averments qua the director of the company relying on S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla [2005] 127 CC 563 (SC) : [2005] 3 GLH 513, quashed and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ness of the company. It is sufficient if an averment is made that the accused was the managing director or joint managing director at the relevant time. This is because the prefix 'managing' to the word 'director' makes it clear that they were in charge of and are responsible to the company, for the conduct of the business of the company. (ii) In the case of a director or an officer of the company who signed the cheque on behalf of the company, there is no need to make a specific averment that he was in charge of and was responsible to the company, for the conduct of the business of the company or make any specific allegation about consent, connivance or negligence. The very fact that the dishonoured cheque was signed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is necessary to the averments and allegations levelled in the complaint and each case is to be decided on the facts and circumstances of the case. 8. As the paragraphs of the complaint reproduced in earlier part of the decision specifically paragraph 4 and subsequent paragraphs would reveal that the applicant in the capacity of director was responsible for the business affairs and he was in charge of the company. Not only that but nowhere it can be said that the applicant was a non-executive director and even if it is so the said argument is in the realm of defence to be decided by the court trying the case under the Negotiable Instruments Act. Since sufficient averments attracting of section 138 of the Negotiable Instruments Act are the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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