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TMI Blog2019 (6) TMI 574X X X X Extracts X X X X X X X X Extracts X X X X ..... n (2) (60) (vi) of the Companies Act, 2013. The complainant failed to state specific averments. As such, complaint cannot be sustained as against the petitioners. Though the dictum laid down under the Negotiable Instruments Act, the legal position is clear that there should be specific averments in the complaint that the accused was in charge and was responsible for the conduct of the business of the company. Therefore, the complaint cannot be sustained as against the petitioners - When there is no specific averments as to officer who is in default to satisfy the provision under Section 2 (60) (vi) of the Companies Act, 2013, no specific averments in the complaint. Therefore, the complaint is not at all sustainable as against the petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainst him and case has been registered in Cr.No.304 of 2015 for the offences under Section 379, 506(ii) I.P.C. on the file of the Inspector of Police, S2 Airport Police Station. He further submitted that previous committee and the Directors of the first petitioner had filed returns from the year 2006 till the present committee members took charge as Directors of the company in the year 2015. Therefore, the petitioners 2 to 6 have no knowledge of non filing of returns before the respondent defacto complainant. Therefore, the respondent complainant had issued notice under Section 206(1) of the Companies Act, 2013 to the first petitioner on 21.04.2017. No reply from the first petitioner was sent and as such notice under Section 206(3) of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State of NCT of Delhi Vs. Rajiv Khurana reported in (2010) 104 SCL 671 (SC) and in the case of Gorige Pentaiah Vs. State of Andhra Pradesh reported in (2008) 12 SCC 531 . Further he submitted that the above judgments are squarely applicable to this case. To incorporate all the petitioners as accused, there should be specific averments in the complaint that the accused was in charge and was responsible for conduct of the business of the company. Therefore, he prayed for quashment of the entire proceedings in E.O.C.C.No.570 of 2017 on the file of the Additional Chief Metropolitan Magistrate, Economic Offences Court I, Egmore, Chennai-8. 3. Per contra, Mr.B.Ramesh, Special Public Prosecutor for the first respondent submit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... specific averments as that the officer who is in default to attract within the meaning of Section (2) (60) (vi) of the Companies Act, 2013. The complainant failed to state specific averments. As such, complaint cannot be sustained as against the petitioners. 6. It is relevant to extract the decision of the Hon'ble Supreme Court of India in the case of State of NCT of Delhi through Prosecuting Officer, Insecticides, Government of NCT, Delhi Vs. Rajiv Khurana reported in (2011) 2 MLJ (Crl) 375 (SC), wherein it is held as follows: 18. The ratio of all these cases is that the complainant is required to state in the complaint how a Director who is sought to be made an accused, was in charge of the business of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t that the dishonoured cheque was signed by him on behalf of the company, would give rise to responsibility under sub-section (2) of Section 141. (iii) In the case of a Director, secretary or manager [as defined in Section 2(24) of the Companies Act] or a person referred to in clauses (e) and (f) of Section 5 of the Companies Act, an averment in the complaint that he was in charge of, and was responsible to the company, for the conduct of the business of the company is necessary to bring the case under Section 141(1) of the Act. No further averment would be necessary in the complaint, though some particulars will be desirable. They can also be made liable under Section 141(2) by making necessary averments relating to consent and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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