9911796707
TMI Blog2020 (3) TMI 989X X X X Extracts X X X X X X X X Extracts X X X X ..... identical questions of law and facts are involved for adjudication. For brevity, facts are taken from CRM-M No.40532 of 2019. The prayer in all these petitions is for quashing of complaints No. 4661 of 2018, 4663, 4665, 4666, 4668 and 4664 of 2018 dated 06.03.2018 filed under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the NI Act') (Annexure P-1) and for setting-aside the summoning order dated 07.04.2018 (Annexure P-2) and all other subsequent proceedings arising therefrom. Counsel for the petitioner has argued that the respondent Jagmeet S. Soin, has filed 06 identical complaints under Section 138 of the NI Act with similar allegations relating to different cheques which were allegedly dishonoured. In all these complaints, accused No.1 is M/s. Concept Horizon Infra Private Limited (hereinafter to be referred to as 'the Company') through the authorized signatory Jeevesh Sabharwal, Director, accused No.2 is Jeevesh Sabharwal, Director and authorized signatory, accused No.3 is Suninder Sandha, Director and authorized signatory and accused No.4 is Rohan Rajan, authorized signatory (present petitioner) of accused No.1 Company. Counse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the petitioner has been arrayed as accused in the present complaints only because he is brother-in-law of accused No.2 and at no point of time, he has any business dealing with complainant. It is further submitted that the only allegations in all the complaints is in para 3 wherein it is stated that accused Nos.2 and 3 are the Directors and accused No.4 is In-charge of the affairs of accused No.1 Company. Counsel for the petitioner in support of his arguments has referred to the Memorandum of Understanding dated 11.01.2016, which is entered between the accused No.1 Company through its Director Suninder Sandha as first party and the complainant Jagmeet S. Soin as the second party. Counsel for the petitioner has further referred to Clause (4) of this Memorandum of Understanding wherein the disputed cheques numbers are given. It is further submitted that all these cheques are drawn on Punjab and Sind Bank and accused Nos.2 and 3 are the signatories of the cheques and the petitioner/accused No.4 is not a signatory. Counsel for the petitioner has also referred to one of the cheque bearing No.01908 for ₹ 10,000,000/-, which is signed by accused Nos.2 and 3 onl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atutes create vicarious liability. 14. A company may have a number of Directors and to make any or all the Directors as accused in a complaint merely on the basis of a statement that they are in-charge of and responsible for the conduct of the business of the company without anything more is not a sufficient or adequate fulfillment of the requirements under Section 141. 15. In a catena of decisions, this Court has held that for making Directors liable for the offences committed by the company under Section 141 of the Act, there must be specific averments against the Directors, showing as to how and in what manner the Directors were responsible for the conduct of the business of the company. 16. In the light of the above provision and the language used therein, let us, at the foremost, examine the complainta filed by National Small Industries Corporation Limited and the DCM Financial Services Ltd. 17. In the case of National Small Industries Corpn. Ltd., the High Court has reproduced the entire complaint in the impugned order and among other clauses, clause 8 is relevant for our consideration which reads as under: 8. That the accused No. 2 is the Manag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y then merely by stating that he was in-charge of the business of the company or by stating that he was incharge of the day-to-day management of the company or by stating that he was in-charge of, and was responsible to the company for the conduct of the business of the company , he cannot be made vicariously liable under Section 141(1) of the Act. To put it clear that for making a person liable under Section 141(2), the mechanical repetition of the requirements under Section 141(1) will be of no assistance, but there should be necessary averments in the complaint as to how and in what manner the accused was guilty of consent and connivance or negligence and therefore, responsible under sub-section (2) of Section 141 of the Act. 39. From the above discussion, the following principles emerge : (i) The primary responsibility is on the complainant to make specific averments as are required under the law in the complaint so as to make the accused vicariously liable. For fastening the criminal liability, there is no presumption that every Director knows about the transaction. (ii) Section 141 does not make all the Directors liable for the offence. The criminal li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rinciples laid down by the Hon ble Supreme Court. Counsel for the respondent, on the basis of the reply filed by the respondent/complainant has submitted that the petitioner is also In-charge of the Company, however, counsel for the respondent has fairly conceded that there is no document to support the contention of the complainant that either the petitioner is a signatory of Memorandum of Understanding or is a signatory of the cheques and therefore, the arguments of the petitioner on these points could not be disputed by counsel for the respondent. Counsel for the respondent has further argued that the allegations against the other two accused i.e. accused Nos.2 and 3 are that they are Directors, In-charge of business and signatories of the cheques. After hearing the counsel for the parties and going through all the complaints as well as the reply filed by the complainant, I find merit in the present petition for the following reasons:- (a) The complaint is based on a Memorandum of Understanding, which is not signed by the petitioner and is rather signed by accused No.3 Suninder Sandha. The dishonoured cheques were given to the complainant at the time of signin ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
