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TMI Blog2022 (1) TMI 192X X X X Extracts X X X X X X X X Extracts X X X X ..... ed under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the N.I. Act) read with Section 142 N.I. Act. Vide the aforesaid order, the Revisional Court has set aside the order of summoning passed by the Trial Court qua respondent No. 2, i.e., Pranati Samal. 2. Briefly stated, the facts involved in the present case are that the petitioner filed the aforesaid complaint under Section 138 N.I. Act against M/s Samal Infra Projects Pvt. Ltd. (hereinafter referred to as 'the accused company') and respondent Nos. 1 and 2 who are stated to be Directors of the accused company. It was stated in the complaint that the accused company had business relations with the petitioner company, in terms of which the accused company ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sible for conduct of the business of the accused company. 4. Learned counsel for respondent No. 2, on the other hand, has supported the impugned order. She submits that no specific averments have been made in the complaint regarding the role of respondent No. 2 in the affairs of the accused company and/or the transaction in question. She further submits that respondent No. 2, albeit a Director of the accused company, was not involved in its financial affairs and did not sign the cheques in question. Thus, no liability under Sections 138/141 N.I. Act could be attributed to her merely on account of the position held by her in the accused company. 5. I have heard learned counsels for the parties and also perused the entire material placed on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... int that he was in-charge of and responsible to the accused company for running of its day-to-day business at the time of commission of the alleged offence. In this regard, the Supreme Court while answering a reference in S.M.S. Pharmaceuticals (Supra), has held that: "19. ... It is necessary to specifically aver in a complaint under Section 141 that at the time the offence was committed, the person accused was in charge of, and responsible for the conduct of business of the company. This averment is an essential requirement of Section 141 and has to be made in a complaint. Without this averment being made in a complaint, the requirements of Section 141 cannot be said to be satisfied." 10. Reference is further taken of the decision in Gu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere in charge of and were responsible for the conduct of the business of the company. This is a basic requirement. There is no deemed liability of such Directors... xxx 30. When a petition is filed for quashing the process, in a given case, on an overall reading of the complaint, the High Court may find that the basic averment is sufficient, that it makes out a case against the Director; that there is nothing to suggest that the substratum of the allegation against the Director is destroyed rendering the basic averment insufficient and that since offence is made out against him, his further role can be brought out in the trial. In another case, the High Court may quash the complaint despite the basic averment. It may come across some un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an overview of the judicial dicta on the subject, this Court is of the opinion that the N.I. Act being a penal statute should receive strict construction and thus, averments in the complaint which satisfy the requirements of Section 141 N.I. Act are imperative. 12. Before proceeding to the facts of the present case, it is worthwhile also to reproduce the view taken recently in Sunil Todi and Others v. State of Gujarat and Another reported as 2021 SCC OnLine SC 1174, wherein the Supreme Court was in seisin of appeals preferred by accused/appellants against the order of the High Court, whereby petitions seeking quashing of criminal complaints filed under Section 138 N.I. Act were dismissed. The Court observed thus:- "53. The test to determ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onoring of the cheque, the complainant intimated the accused/respondents and requested them to pay the due amount but clearly refused to pay the same. xxx 12. That the complainant has not received back the notice envelops and the notice duly received by the accused/respondents and the accused/respondents have sent a false reply to the notice but till date did not make any payment to the complainant. It is pertinent to mention herein that the accused/respondents are working at the above mentioned address as the complainant went several times to the said address of accused persons and requested them for making the payment." 14. From a bare perusal of the same, it is apparent that a basic averment to the effect that respondent No. 2 was r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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