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TMI Blog2017 (2) TMI 1492X X X X Extracts X X X X X X X X Extracts X X X X ..... inant filed aforesaid complaint case against the petitioner and opposite party No. 2 and 3. Opposite Party No. 2 is the company, which is the principal accused. Opposite Party No. 3 is the Managing Director of Opposite Party No. 2. The petitioner was arrayed as accused as because she is a Director of the accused-company. The complaint petition was initially filed in the Court of the learned Sub-Divisional Judicial Magistrate, Panposh, Rourkela where the Bank on which the cheques were drawn was located and registered as I.C.C. No. 458 of 2015, but subsequently in view of promulgation of Negotiable Instruments (Amendment) Ordinance, 2015, by the Government of India, the learned S.D.J.M., Rourkela passed order returning the complaint to oppos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the petitioner was a Director on the date of issuance of cheques in question, and that she was in-charge- of the conduct of business of accused-company and had the knowledge of issuance of the cheques, she cannot be made vicariously liable and, therefore, the order taking cognizance of the offence against her is bad and illegal. To further buttress the point, the learned Counsel submits that the complainant-company has not been represented in the complaint case by a person competent to represent such company and, therefore, the complaint was not maintainable and no offence can be said to have been committed by the accused-company, and, therefore, the petitioner being only a Director, cannot be held liable vicariously. 3. Learned Counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is extended to the officers of the Company and as there is a specific provision extending the liability to the officers, the conditions incorporated in Section 141 are to be satisfied. It has been ruled as follows "It primarily falls on the drawer Company and is extended to officers of the Company. The normal rule in the cases involving criminal liability is against vicarious liability, that is, no one is to be held criminally liable for an act of another. This normal rule is, however, subject to exception on account of specific provision being made in the statutes extending liability to others. Section 141 of the Act is an instance of specific provision which in case an offence under Section 138 is committed by a Company, extends crimina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egard being had to the legislative intendment because it deals with penal provisions and a penalty is not to be imposed affecting the rights of persons whether juristic entities or individuals, unless they are arrayed as accused. It is to be kept in mind that the power of punishment is vested in the legislature and that is absolute in Section 141 of the Act which clearly speaks of commission of offence by the Company. The learned Counsel for the respondents have vehemently urged that the use of the terms "as well as "in the Section is of immense significance and, in its tentacle, it brings in the Company as well as the director and/or other officers who are responsible for the acts of the company and, therefore, a prosecution against the di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arraigning of a Company as an accused is imperative. The other categories of offenders can only be brought in the dragnet on the touchstone of vicarious liability as the same has been stipulated in the provision itself. We say so on the basis of the ratio laid down in C.V. Parekh (supra) which is a three-Judge Bench decision. Thus, the view expressed in Sheoratan Agrawal (supra) does not correctly lay down the law and, accordingly, is hereby overruled. The decision in Anil Hada (supra) is overruled with the qualifier as stated in paragraph 37. The decision in Modi Distilleries (supra) has to be treated to be restricted to its own facts as has been explained by us hereinabove." 5. Also in the case of Central Bank of India v. Asian Global L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... activities. In respect of the petitioner, it is simply averred that she is the Director of the accused-company and, therefore, all the accused persons are jointly liable for the offence. There is no averment whether the petitioner was a Director of the accused-company on the date of issuance of the cheques in question, which were admittedly signed by accused No. 2, the Managing Director. There is no other specific allegation against the petitioner. Therefore, keeping in view the ratio laid down by the Hon'ble Apex Court in the decisions cited above and having regard to the averments made in the complaint petition, it cannot be said that the petitioner, as a Director, would be vicariously liable for the offence allegedly committed by t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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