9911796707
TMI Blog2021 (11) TMI 755X X X X Extracts X X X X X X X X Extracts X X X X ..... and signature of the petitioners who were the directors in the company in favour of the respondent/complainant for the supply of the material.ie. waste and scrap of iron and steel to M/s. Mehala Castings and Components Pvt. Ltd. These cheques have been given for the business transaction held between the petitioner's company and the complainant's company. In such circumstances, the petitioners/Directors of the company have issued the said cheques in question in favour of the respondent/complainant. Whether the company is not functioning from January 2014 and the petitioner were not directors in the company at that point of time could be tried and decided only in the Trial. Further the averments made by the petitioner is not acceptable while the petitioners have not produced any substantial material to prove that the directors have not involved in the affairs of the company and they were not responsible in the day to day activities of the company - All these averments are factual in nature and the same has to be established only at the time of Trial. The petitioners cannot seek to quash the C.C.Nos.367 and 368 of 2015 on the file of the Judicial Magistrate Court No.1, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mplainant instituted the complaint against the petitioners in C.C. Nos.367 and 368 of 2015 on the file of the Judicial Magistrate Court-I,Tiruppur. Against the aforesaid complaints made by the complainant/respondent herein, the petitioners have filed the present Criminal Original Petitions to quash the same. 3. The learned counsel for the petitioners submitted that the learned Magistrate ought not to have taken cognizance of the complaint against these petitioners while there is no specific allegations made against these petitioners about their role in issuing the cheques in question and its subsequent dishonour. 4. The learned counsel relying on the Judgment of the Supreme Court in the case of Pooja Ravinder Vs. State of Maharastra reported in JT 2014 [14]SC 1, pointed out the following observations made therein: (i) to fasten vicarious liability under Section 141 of the Act on a person, at the material point of time, the person should have been at the helm of the affairs of the company and particularly responsible for the conduct of its business. (ii) the complaint must disclose the role of the [directors] in the affairs of the company and in what manner the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in reply to the Statutory notice the petitioner/accused forwarded their letter dated 22.01.2015 mentioning inter alia 4. Your Clients may be advised to furnish a copy of the Cheque leaf to our client for their investigation. Our client sincerely believe that Mr. Rathinasamy, when he was managing the affairs of the Company, might have parted the Cheques with your client that is before March 2013. 5. The fact is that the company was entirely managed by the then Managing Director Mr. Rathinasamy and he had misused his office during his tenure. There was absolutely no occasion for our clients, to issue any cheque to your clients in the month of November, December 2014. Further, the respondent/Complainant forwarded their rejoinder dated 14.02.2015 as follows: We are in receipt of your reply notice dated 22.01.2015. Our client states your clients want to project an innocent face though fully involved, obviously on legal advice. Your client admits that Mr. Rathinasamy was the Managing Director of the Company. Your Client do not deny that Mr.Ramasamy Selvam and Mr. Chinnaiya Gounder Subramanian were/are Directors of the Company. Our Client states that your clients were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ectors of the Company at the relevant point of time, and the concerned Cheques were issued with their consent towards the supplies made and hence, this would be prima-facie sufficient to constitute an offence under Section 141 of the N.I. Act. 10. In the present case, it is reiterated that (1). the Statutory notice, (2). the rejoinder and (3). the complaint read together clearly establishes the fact that: 1. The Accused Directors are in charge of and responsible for the day-to-day affairs of the Company. 2. Accused Directors 2 to 4 actively participated in the affairs of the 1st accused company. 3. Accused Director No.4 with the consent of the Accused Directors 2 3 have issued the Post Dated Cheques. 11. It has further been submitted that apart from the Cheques, Statutory Notice and the re-joinder, are part and parcel of the complaint dated 26.02.2015 and therefore, the complaint cannot be looked into in isolation but have to be read together with the documents and not disjointly. Therefore, it is respectfully submitted pre-requisites of Section 141 of Negotiable Instrument Act has been complied with. 12. The Counter further states that if there is no st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 something that is peculiarly within their knowledge and it is for them to establish at that trial such a restriction or to show that at the relevant time they were not incharge of the affairs of the company. Reading the complaint as the whole, we are satisfied that it is a case where the contentions sought to be raised by the appellant can only be dealt with after the conclusion of the Trial . In view of the above, in the complaint and in the statutory notice, presumption under Section 139 of the Negotiable Instrument Act is that the accused are guilty. Accordingly, it is for the accused to prove that they are not guilty as the Company is run by its Board of Directors. 15. It has been further submitted in the counter that it has been held by the Hon'ble Supreme Court that there is no bar to take cognizance of the offence by the concerned magistrate on the return of cheques by the bank with the endorsement such as Exceeds Arrangment or Account Closed . NEPC MICON LTD. AND OTHERS Vs. MAGMA LEASING LTD.: AIR 1999 S.C. 1952. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ompany 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 petitioners who were the directors in the company in favour of the respondent/complainant for the supply of the material.ie. waste and scrap of iron and steel to M/s. Mehala Castings and Components Pvt. Ltd. These cheques have been given for the business transaction held between the petitioner's company and the complainant's company. In such circumstances, the petitioners/Directors of the company have issued the said cheques in question in favour of the respondent/complainant. However, the petitioners herein are denying their liability and that the company is not functioning from January 2014 and the Managing Directors would have issued the said cheques on their own accord is not supported by any material evidence. Whether the company is not functioning from January 2014 and the petitioner were not directors in the co ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
