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TMI Blog2021 (6) TMI 548X X X X Extracts X X X X X X X X Extracts X X X X ..... aid offence. Petitioners are at liberty to raise all the grounds before the trial Court during the course of trial. It is made clear that this Court has not expressed any opinion on the merits of the matter. Petition dismissed. - WPCR No. 129 of 2013 and WPCR No. 154 of 2013 - - - Dated:- 5-2-2021 - Sanjay K. Agrawal, J. For the Appellant : Anup Majumdar and Saket Pandey, Advocate For the Respondents : Sharad Mishra, Advocate and Suyash Dhar, PL ORDER Sanjay K. Agrawal, J. 1. Since common question of law and fact is involved in these two writ petitions, they were heard together and are being disposed of by this common order. (For the sake of convenience, facts of the case are taken from WPCR No. 129/2013 being lead case.) 2. Petitioner No. 1, M/s. Binco Constructions Pvt. Ltd., is a company incorporated under the provisions of the Companies Act, 195 6 petitioner No. 2, Bamdev Nayak, was Managing Director of the company (petitioner No. 1) at the relevant point of time and petitioner No. 3, Mr. Manoj Kumar Nayak, was Director of the company (petitioner No. 1) at the relevant point of time. 3. On account of some business transaction petitioner N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Airways Private Limited and Others v. Magnum Aviation Private Limited and Another (2014) 12 SCC 539, S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla and Another (2005) 8 SCC 89, National Small Industries Corporation Limited v. Harmeet Singh Paintal and Another (2010) 3 SCC 330 Ashoke Mal Bafna v. Upper India Steel Manufacturing and Engineering Company Limited (2018) 14 SCC 202 Rajiv Thapar and Others v. Madal Lal Kapoor (2013) AIR SCW 784 and Gunmala Sales Private Limited v. Anu Mehta and Others (2015) 1 SCC 103 in support of his contentions. 7. Mr. Sharad Mishra, learned counsel for respondent No. 1/complainant, would submit that petitioner No. 2, Managing Director had issued two cheques, admittedly on behalf of the company, therefore, he would be liable for prosecution for dishonor of the cheque and so also petitioner No. 3, Director of the company, who is responsible for day-to-day affairs of the company. There is sufficient and clear averments in paragraphs No. 2 4 of the complaint and, as such, he relied upon the judgment of the Supreme Court in the case of A.R. Radha Krishna vs. Dasari Deepthi and Others (2019) 15 SCC 550. 8. I have heard learned counsel for the parties, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... que, within fifteen days of the receipt of the said notice. Explanation.--For the purposes of this section, debt or other liability means a legally enforceable debt or other liability. Section 141 of the NI Act states as under:- 141. Offences by companies.--(1) If the person committing an offence under section 138 is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly: Provided that nothing contained in this sub-section shall render any person liable to punishment if he proves that the offence was committed without his knowledge, or that he had exercised all due diligence to prevent the commission of such offence: Provided further that where a person is nominated as a Director of a company by virtue of his holding any office or employment in the Central Government or State Government or a financial corporation owned or controlled by the Central Government or the State Government, as the case may be, he s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erge: (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 liability can be fastened only on those who, at the time of the commission of the offence, were in charge of and were responsible for the conduct of the business of the company. (iii) Vicarious liability can be inferred against a company registered or incorporated under the Companies Act, 1956 only if the requisite statements, which are required to be averred in the complaint/petition, are made so as to make accused therein vicariously liable for offence committed by company along with averments in the petition containing that accused were in charge of and responsible for the business of the company and by virtue of their position they are liable to be proceeded with. (iv) Vicarious liability on the part of a person must be pleaded and proved and not inferred. (v) If accused is Managing D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court was not justified in allowing the quashing petitions by invoking its power under Section 482 CrPC. In a case pertaining to an offence under Section 138 and Section 141 of the Act, the law requires that the complaint must contain a specific averment that the Director was in charge of, and responsible for, the conduct of the company's business at the time when the offence was committed. The High Court, in deciding a quashing petition under Section 482 CrPC must consider whether the averment made in the complaint is sufficient or if some unimpeachable evidence has been brought on record which leads to the conclusion that the Director could never have been in charge of and responsible for the conduct of the business of the company at the relevant time. While the role of a Director in a company is ultimately a question of fact, and no fixed formula can be fixed for the same, the High Court must exercise its power under Section 482 CrPC when it is convinced, from the material on record, that allowing the proceedings to continue would be an abuse of process of the Court. 16. Following the principle of law laid down by the Supreme Court in the above stated judgments (supra) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aforesaid paragraphs of the complaint would show that petitioner No. 3, Director of the company is responsible for conduct of business of the company as stated in paragraphs No. 2 4 of the complaint noticed hereinabove as specific averment has been made by the complainant in his complaint and even otherwise the plea of the petitioners that they are not responsible for day to day affairs is a question of fact which has to be determined during the course of trial as held by the Supreme Court in the matter of A.R. Radha Krishna (supra) and on that basis, prosecution against him cannot be quashed at this stage in this petition. 19. Next submission of the petitioner is that they have already paid amount in question and filed documents before this Court but this plea also cannot be considered at this stage. It is for the petitioners to establish the said plea before the trial Court during the course of trial as the issue cannot be adjudicated in this petition at this stage. As such, learned JMFC is absolutely justified in issuing process after taking cognizance of offence under Section 138 of the N.I. Act. I do not find any perversity or illegality in order taking cognizance for th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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