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TMI Blog2021 (11) TMI 755X X X X Extracts X X X X X X X X Extracts X X X X ..... issued to the total value of Rs. 24,00,000/-. When the said Cheques were presented for collection, they were returned by their Bank with a memo "Account Closed". In view of the return of said cheques, the complainant/respondent herein had issued a Statutory Notice dated 12.01.2015 under Section 138 of the Negotiable Instrument Act, demanding payment of the amount due on these Cheques. Thereafter, the petitioners herein have sent a reply notice dated 22.01.2015 stating that the company is not functioning from January 2014, and that the Managing Director would have issued the cheques on his own accord, and the complainant/respondent herein was called upon to indicate the name of the person who had drawn the cheques and to send a copy of the cheques. Further, It was also stated that the accused company was entirely managed by the Managing Director Mr. Rathinasamy and that, these petitioners were not at all involved in the day to day affairs of the company. Further, the respondent/complainant did not send the xerox copy of the cheques as demanded by the petitioners and rebutted the allegations made in the reply notice. Thereafter, the respondent/complainant instituted the complaint aga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on that after the first batch of cheques for the 24 Lakhs were returned by Memo dated 03.01.2015, with the endorsement "Exceeds arrangement". After that, the account has been closed deliberately by the petitioner company. Consequently, the second batch of cheques for Rs. 24 Lakhs were returned with the Memo dated 07.01.2015 endorsing "Account Closed". Subsequent to the return of the cheques, the respondent/complainant issued a statutory notice dated 12.01.2015 under Section 138 of the Negotiable Instrument Act demanding the payment of amount due on the 8 cheques totaling to Rs. 24 Lakhs for the supply of the material. 6. In the counter affidavit, the Respondent/Complainant extracted the below relevant portion of the Statutory Notice CFL/SdK:12.01.2015 "Our Client states you have issued an email dated 22.01.2014 which reads as follows: "Dear Sir, We hereby confirm that the balance outstanding as per our books of accounts as on 22.01.2014 is Rs. 69,86,275/-. Issued but not cleared cheques are not accounted in our books. Please find attached our account statement as on 22.01.2014. However, in reply to the Statutory notice the petitioner/accused forwarded their letter dated 22. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Act. The accused No.2 to 4 are the directors in the Accused No.1 company. The Accused Nos.2 to 4 are actively participating in the affairs of the 1st accused Company... 2. Towards the supplies, the Accused No.4 on behalf of the Accused No.1 and with the consent of the Accused Nos.2 & 3 had issued Post Dated Cheques on various dates drawn on the Oriental Bank of Commerce, Vallipalayam Branch, Thirupur - 641 601 and bearing Nos575323, 575326, 575327, 575329m 575330, 575332, 575333m 575335 dated 03.11.2014, 05.11.2014, 09.11.2014, 11.11.2014, 13.11.2014, 15.11.2014, 17.11.2014 for an amount of Rs. 3,00,000/- each in favour of the Complainant. The Total Cheque amount is Rs. 24,00,000/-. The above cheques were issued towards part satisfaction. 9. It has been explicitly averred in the complaint that the directors have actively participated in the affairs of the 1st accused company and that towards the supplies, Accused No.4 with the consent of the Accused Nos.2 & 3 have issued the Post Dated Cheques. Since the complaint discloses that the petitioners were/are directors of the Company at the relevant point of time, and the concerned Cheques were issued with their consent towards the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... him by the Company is dishonored, he is expected only to be aware generally of who are in charge of the affairs of the Company. It is not reasonable to expect him to know whether the person who signed the Cheque was instructed to do so when he actually signed the cheque. Those are matters peculiarly within the knowledge of the company and those in charge of it. So, all that a payee of a Cheque that is dishonored can be expected to allege is that the persons name in the complaint are in charge of its affairs. The Directors are preimafacie in that position. 19. We think that, in the circumstances, the High Court has rightly come to the conclusion that it is not a fit case for exercise of jurisdiction under Section 482 of the Code of Criminal Procedure for quashing the complaint. In fact, and advertence to Sections 138 and 141 of the Negotiable Instrument Act shows that on the other elements of an offence under Section 138 being satisfied, the burden is on the Board of Directors or the Officers in charge of the affairs of the Company to show that they are not liable to be convicted. Any restricts on their power or existence of any special circumstances that make them not liable is s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eques and they were not aware of the transactions. Therefore, the role of the Directors are all the matters to be decided at the Trial. 17. Heard the learned counsel for the petitioner and perused the material available on record. 18. On reading of the aforesaid Judgments relied by the learned counsel for the petitioner and the learned counsel for the respondent, it makes clear that the responsibility of the directors and day to day activities of the directors in the company would be disclosed in the Trial. Further, the reliance of the Judgment in the case of "Pooja Ravinder Devidasani Vs. State of Maharashtra and another" placed by the learned counsel for the petitioners wherein it is held that "the appellant was neither a Director f the accused company nor in charge of or involved in the day to day affairs of the company at the time of commission of the alleged offence. There is not even a whisper or shred of evidence on record to show that the appellant could be vicariously held liable for the offence with which she is charged". However, in the present case, it is admitted fact that the cheques were issued by the Directors with seal of the company and signature of the petition ..... 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