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TMI Blog2018 (9) TMI 2030X X X X Extracts X X X X X X X X Extracts X X X X ..... due to the change in law. It was returned to the complainant for presentation in the proper Court and therefore, for a second time the complaint was presented before the Judicial Magistrate First Class at Gangapur. Hence, there was no fault on the part of all complainant. The return of the complaint by two Courts was due to change in the law from time to time, in such situation, it cannot be said that the complaint is not before limitation. It is duty of the Magistrate before summoning the accused under Section 138 of the Negotiable Instruments Act, Magistrate is expected to examine the nature of the allegations made in the complaint and the evidence both orally and documentary in support thereof and than to proceed further with proper application of mind to the legal principles on the issue. It is necessary for the courts to ensure strict compliance to the statutory requirement as well as settle principles of law before making a person vicariously liable, therefore, simply because a person is a director of a defaulter company does not make him liable under the Act for the offence committed by the company under Section 141 of the Negotiable Instrument s Act. There must be specific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he applicants, Mr. A.D. Namde, learned APP for the State and Mr. K.J. Suryawanshi learned counsel for the original complainant - respondent No. 2. 7. Mr. Chapalgaonkar, learned counsel for the applicants has advanced his arguments mainly on the following points: i) Due to the return of the complaint and its presentation again before the same Court, there was no limitation for filing the complaint; ii) The cheque is not signed by the present applicant, it was signed by the accused No. 1. iii) There are no allegation against the applicants that they were looking after and responsible for day today affairs of the company i.e. accused Nos. 1; iv) The present applicants have already resigned from the post of directors before issuance of the cheques or its presentation in the concerned bank. 8. As against this, the learned counsel for the respondent No. 2 has argued that in the complaint itself there is specific allegation against the accused Nos. 1 to 4 that they are the directors of V.R. Textiles, Private Limited and looking after all affairs and therefore, are responsible for textiles. He further submits that the allegations against the applicants are sufficient to attract t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation as it was not presented within time after return of the complaint by the learned trial court. From the record, it appears that when the complaint was presented before the trial court, it was returned to the complainant for its presentation in the proper court as per the law laid down by the Hon'ble Supreme Court in case of Dashrat Rathod Vs. State of Maharashtra. Thus from the record, it appears that in view of the law laid down by the Apex Court, in the aforesaid case, the complaint was returned to the complainant for presentation to the proper Court. Further record shows that the complaint was then presented before the Court at Coimbatore again due to the change in law. It was returned to the complainant for presentation in the proper Court and therefore, for a second time the complaint was presented before the Judicial Magistrate First Class at Gangapur. Hence, there was no fault on the part of all complainant. The return of the complaint by two Courts was due to change in the law from time to time, in such situation, it cannot be said that the complaint is not before limitation. 13. To consider the other aspect, it is material to mention here that from the copies of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficient to make out the case against him. Therefore, complaint cannot be quashed. It is further observed in the same case that there was no evidence on record to show acceptance of the petitioner's resignation by the Company on date on which it is alleged to be tendered and it is observed that the prosecution cannot be quashed only on the ground of petitioner having ceased to be Director, when last few acts of presentation of cheque to Bank and its dishonour took place. 17. The learned counsel for the respondent No. 2, however, relied upon the observation of this Court in the case reported in 2017 ALL Mr. (Cri.) 76 wherein, it is observed that merely because petitioners were appointed as independent and non-executive directors, in view of their expertise in particular field, it cannot be ground for quashing process issued against them. The learned counsel further relied upon the observation in case reported in AIR 2015 SUPREME COURT 1072 wherein, it is observed that complaint containing basic averment that director was in-charge of and responsible for conduct of companies business at the relevant time in that event Magistrate can issue process against such directors. As agains ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -M/S Elite International Pvt. Ltd. on 1st July, 2004 and had also executed a Letter of Guarantee on 19th January, 2005. The cheques in question were issued during April, 2008 to September, 2008. So far as the dishonor of Cheques is concerned, admittedly the cheques were not signed by the appellant. There is also no dispute that the appellant was not the Managing Director but only a nonexecutive Director of the Company. Non-executive Director is no doubt a custodian of the governance of the Company but does not involve in the day-to-day affairs of the running of its business and only monitors the executive activity. To fasten vicarious liability under Section 141 of the Act on a person, at the material time that person shall have been at the helm of affairs of the Company, one who actively looks after the day-to-day activities of the Company and particularly responsible for the conduct of its business. Simply because a person is a Director of a Company, does not make him liable under the N. I. Act. Every person connected with the Company will not fall into the ambit of the provision. Time and again, it has been asserted by this Court that only those persons who were in charge of and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the names of the present applicants are not figured as a directors of the same company - accused No. 1, Mr. Chapalgaonkar has relied upon the observation in the case reported in (2012) SCC 520 wherein, it is observed that: This Court has repeatedly held that in case of a Director, the complaint should specifically spell out how and in what manner the Director was in charge of or was responsible to the accused Company for conduct of its business and mere bald statement that he or she was in charge of and was responsible to the company for conduct of its business is not sufficient. (Vide National Small Industries Corporation Limited vs. Harmeet Singh Paintal and Another,). In the case on hand, particularly, in para 4 of the complaint, except the mere bald and cursory statement with regard to the appellant, the complainant has not specified her role in the day to day affairs of the Company. We have verified the averments as regard to the same and we agree with the contention of Mr. Akhil Sibal that except reproduction of the statutory requirements the complainant has not specified or elaborated the role of the appellant in the day to day affairs of the Company. On this grou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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