9911796707
TMI Blog2022 (2) TMI 950X X X X Extracts X X X X X X X X Extracts X X X X ..... f the company. This Court is, therefore, not inclined to interfere with the order dated 03.02.2021 issuing summons to the petitioner herein - Supreme Court in ASHUTOSH ASHOK PARASRAMPURIYA ANR. VERSUS M/S. GHARRKUL INDUSTRIES PVT. LTD. ORS. [ 2021 (10) TMI 431 - SUPREME COURT] , squarely covers the present case. It is for the petitioner to establish in trial that he was not responsible for the conduct of the business of the company owing to his age and the mere ipse dixit of the petitioner that he is 80 years of age and is unable to manage the affairs of the company cannot be accepted at this stage and the complaint cannot be quashed on that basis. The observations made by this Court is limited to the issue as to whether the complaint should be quashed or not because of the fact that the complaint does not state the exact role of the petitioner in the conduct of the business of the company - Petition dismissed. - CRL.M.C. 2082/2021 & CRL.M.A. 14016/2021 - - - Dated:- 21-2-2022 - HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD Petitioner Through : Mr. Neeraj Malhotra, Senior Advocate with Mr. Shiv Gupta, Ms. Devahuti Tamuli, Advocates Respondents Through : Ms. Neelam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Sector 18, Noida. Cheques No.64 dated 26.08.2020 for a sum of ₹ 17,28,000/- drawn on Andhra Bank, Sector 18, Noida. Cheque No.65 dated 26.08.2020 for a sum of ₹ 5,00,000/- drawn on Andhra Bank, Sector 18, Noida. vii. It is stated that the cheques were for payment of arrears of salary. viii. It is stated that the cheques were presented for encashment through Andhra Bank, Sector B, Pkt 1, DAV Public School Campus, Vasant Kunj, New Delhi, which is the bank of the complainant and the cheques were returned with remark insufficient fund . ix. It is stated that the cheque No.63/2020 dated 25.08.2020, cheque No.65/2020 dated 26.08.2020 drawn on Andhra Bank, Sector-18, G B Nagar, Noida-201301 were returned on 28.8.2020 and cheque No. 64/2020 dated 26.08.2020 drawn on Andhra Bank, Sector-18, G B Nagar, Noida-201301 was returned on 29.08.2020 due to insufficient funds. x. It is stated that legal notice dated 02.09.2020 was issued in compliance to the mandate of Section 138 of the NI Act demanding payment. However, instead of making the payment, a reply dated 17.09.2020 was received by the complainant. Since, the money was not paid, the instant co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and both the directors are responsible for the conduct of the affairs of the company. She submits that the question as to whether the company was being only run by the Accused No.2 i.e. son of the petitioner herein or whether the Petitioner herein is also involved in the affairs of the company, is a matter of trial and the complaint cannot be quashed at this stage. She further states that offence under Section 138 of the NI Act is made out and no interference is warranted from this Court at this stage. 6. The factors which are necessary to be kept in mind before making a person vicariously liable for the offences committed by the company under Section 138 of the N.I. Act have been succinctly laid down by the Apex Court in a number of judgments, and are as follows:- (i) The primary responsibility is on the complainant to make specific averments as are required under the law in the complaint so as to make the accused vicariously liable. For fastening the criminal liability, there is no presumption that every Director knows about the transaction. (ii) Section 141 does not make all the Directors liable for the offence. The criminal liability can be fastened only on those w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of running a TV News Channel i.e. India Ahead at the above-mentioned address. The Respondent No.2 3 are the Directors of Respondent No.1 The Respondent Nos.2-3 are responsible for day to day affairs and acts of the Company and had been conducting the same by being present and actively controlling all operations on site at the office on a daily basis from the start of the operations of the Channel. 8. Admittedly, there are only two directors of the company. As laid down by the Apex Court, specific averments have been made that accused, who are the Directors of the company and are responsible for the day-to-day affairs and acts of the company and had been conducting the same by being present and actively controlling all the operations on site at the office on a day-to-day basis from the start of the operation of the channel. The Apex Court in Ashutosh Ashok Parasrampuriya Anr. v. Gharrkul Industries Pvt. Ltd. Ors., (2021) SCC OnLine SC 915 has observed as under:- 23. In the light of the ratio in S.M.S. Pharmaceuticals Ltd. (supra) and later judgments of which a reference has been made what is to be looked into is whether in the complaint, in addition to asserti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocess. (emphasis supplied) 9. It is not the case of the petitioner herein that he is a non-executive director. The petitioner is a full-time director. The complaint read as a whole indicates that at the time of cheques being issued by the company and returned by the bank, the son of the petitioner and the petitioner were the only directors of the company and were responsible for the conduct of the business of the company. This Court is, therefore, not inclined to interfere with the order dated 03.02.2021 issuing summons to the petitioner herein. 10. The latest judgments of the Supreme Court in Ashutosh Ashok Parasrampuriya Anr. v. Gharrkul Industries Pvt. Ltd. Ors., (2021) SCC OnLine SC 915, squarely covers the present case. It is for the petitioner to establish in trial that he was not responsible for the conduct of the business of the company owing to his age and the mere ipse dixit of the petitioner that he is 80 years of age and is unable to manage the affairs of the company cannot be accepted at this stage and the complaint cannot be quashed on that basis. 11. The observations made by this Court is limited to the issue as to whether the complaint should ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
