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TMI Blog2021 (11) TMI 276X X X X Extracts X X X X X X X X Extracts X X X X ..... nt : Mr. B. Kumarasamy For the Respondents : Mr L. Mouli ORDER This Petition has been filed under Section 482 of the Code of Criminal Procedure by A-2 and A-3 in S.T.C. No. 1084 of 2015 pending on the file of the learned Judicial Magistrate, Kotagiri, seeking to quash the said S.T.C. No. 1084 of 2015. 2. A-1 is Imperial Tea Company (P) Limited., represented by its Chairman A-2/first petitioner has been shown as Director of A-1. A3/second petitioner has been shown as a private individual. A-4 is John Gerald and A-5 is Bonita Maria Dinesh. 3. In the complaint filed, it had been stated that A-1 is a Tea Broker Company, and that A-2 and A-3 are the Chairman and Director of the Company. It had thereafter been stated that the Company has been run by the 4th and 5th accused ...... . With respect to the transactions between A-1 and the defacto complainant which is also a tea factory. A-4 had issued a postdated cheque dated 13.05.2015; on 26.05.2015 by cheque bearing No. 054152 drawn on State Bank of Travancore, Coonoor, for ₹ 7,39,471/- in favour of the respondent/defacto complainant from the account of A-4. 4. In the present petition seeking to quash S.T.C. N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trial. 11. I have carefully examined the arguments advanced. 12. Admittedly notice as required under Section 138 of the Negotiable Instrument Act had not been issued to the petitioners. There is no averment that they are in-charge of the day-to-day activities of A-1. The cheque had not been issued by A-1. The cheque had been issued by A-4 in his personal capacity from and out of his bank account. 13. Section 138 of the Negotiable Instrument Act is as follows:- 138 Dishonour of cheque for insufficiency, etc., of funds in the account.--Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for [a term ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een mentioned in the complaint did not, therefore, arise in the facts of this case... 16. In 2011 (1) SCC 176 [Pepsico India Holdings Pvt. Ltd., Vs. Food Inspector and Another], the Hon'ble Supreme Court had held as follows:- 50. . ................ It is now well established that in a complaint against a company and its Directors, the complainant has to indicate in the complaint itself as to whether the Directors concerned were either in charge of or responsible to the Company for its day-to-day management, or whether they were responsible to the Company for the conduct of its business. A mere bald statement that a person was a Director of the Company against which certain allegations had been made is not sufficient to make such Director liable in the absence of any specific allegations regarding his role in the management of the Company. 17. In 2018 (14) SCC 202 [ Ashoke Mal Bafna Vs. Upper India Steel Manufacturing and Engineering Company Ltd.,], the Hon'ble Supreme Court had held as follows:- 9. To fasten vicarious liability under Section 141 of the Act on a person, the law is well settled by this Court in a catena of cases that the complainant should ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere actively participating in the day-to-day affairs of Accused 1 company. Further, Accused 2 to 4 (including Respondents 1 and 2 herein) are alleged to be from the same family and running Accused 1 company together. The complaint also specifies that all the accused, in active connivance, mischievously and intentionally issued the cheques in favour of the appellant and later issued instructions to the bank to stop payment . No evidence of unimpeachable quality has been brought on record by Respondents 1 and 2 to indicate that allowing the proceedings to continue would be an abuse of process of the court. 19. In (2013) 1 SCC 177 [MSR Leathers Vs. S. Palaniappan], the Hon'ble Supreme Court has held as follows:- 12. The proviso to Section 138, however, is all-important and stipulates three distinct conditions precedent, which must be satisfied before the dishonour of a cheque can constitute an offence and become punishable. The first condition is that the cheque ought to have been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier. The second condition is that the payee or the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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