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2022 (3) TMI 314

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..... e accused company No. 1, tendered their resignation on 01.02.2018 and 03.01.2018 respectively, much before issuance of cheques on 27.03.2018. Admittedly, they were not the signatories of both the cheques, which returned dishonoured from the bank. The petitioner nos. 1 2 had sent their resignation letters to the Registrar of the companies in the Form No. DIR-12 and DIR-11 and the same are uploaded in the website of Registrar of the Companies. It also appears that no specific role is assigned to the petitioners in the complaint except one omnibus statement to the effect that all the accused Directors are liable for issuing the cheques in question despite knowing well that the said cheques would be dishonoured due to insufficient fund and that none of the Directors had exercised any due diligence to prevent the commission of offence. Now the question before this Court is whether the aforesaid averment made in the complaint against the petitioner Nos. 1 2 are sufficient to fasten vicarious liability upon them - In the case in hand admittedly, the petitioners have not issued the cheques and they have tendered their resignation much before issuance of the said cheques, moreover .....

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..... up (Metro). 2. The factual background leading to filing of this petition is briefly stated as under: The respondent No. 1 M/s. M.M. Enterprise is a registered partnership firm and Shri Madhab Bhattacharyee and Smti. Junmoni Das are its proprietor. Respondent Nos. 1 and 2-Shri Bijit Mukharjee and Smti. Sabari Bijit Mukharjee, and the petitioner No. 1- Shri Girish Mulshankar Chaudhary and petitioner No. 2-Smti. Kusum Choudhary are the Directors of Sanwaria Infra Space Pvt. Ltd. (accused No. 1), and they are responsible for day-to-day conduct of the business of the Company. M/s. M.M. Enterprise has carried out certain works within the State of Assam with Sanwaria Infra Space Pvt. Ltd. (accused No. 1). In order to discharge its liability, M/s. Sanwaria Infra Space Pvt. Ltd., issued cheques to the respondent no. 1 amounting ₹ 19,82,000/- (Rupees nineteen lakhs eighty two thousand) which are due. The cheques were deposited by the respondent firm but the same were dishonoured and returned with a report that 'fund insufficient'. Thereafter, a statutory demand notice was served upon the respondents and the petitioners and thereafter, Complaint Case No. 2845c/2018 has b .....

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..... er submitted that the petitioners are innocent and no case is made out against them even the allegations made in complaint is accepted as correct and the learned Court below, without applying judicial mind, has taken cognizance against them and therefore, it is contended to quash the complaint case qua the petitioners. Mr. Talukdar, has also referred one case law of Hon'ble Supreme Court in Pooja Ravinder Devidasani vs. State of Maharashtra Anr., reported in 2015 0 AIR (SC) 675, to make good of his submission. 6. Whereas, Mr. S.P. Das, learned counsel for the respondents submits that the present petition is misconceived and filed without arraying the company as accused and that though the petitioners have submitted their resignation from the Board of Directors of the company, yet, the same were not accepted. And as such, Mr. Das submits that the petitioners are still Directors of the Company and are responsible for day to day affairs of the Company. Referring to one case law, Gunmala Sales Private Limited and Ors. vs. Navkar Promoters Private Limited and Ors., reported in (2015) 1 SCC 103, Mr. Das submits that the present complaint case against the present petitioners cann .....

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..... plaint as to how they are responsible in issuing the cheques in question after their resignation. 10. It also appears that no specific role is assigned to the petitioners in the complaint except one omnibus statement to the effect that all the accused Directors are liable for issuing the cheques in question despite knowing well that the said cheques would be dishonoured due to insufficient fund and that none of the Directors had exercised any due diligence to prevent the commission of offence. Now the question before this Court is whether the aforesaid averment made in the complaint against the petitioner Nos. 1 2 are sufficient to fasten vicarious liability upon them. 11. The learned counsel for the petitioners has pointed out that the aforesaid bald statement is not at all sufficient to fasten vicarious liability upon the petitioners, in view of the law laid down by the Hon'ble Supreme Court in the case of Pooja Ravinder Devidasani (supra). In the said case Hon'ble Supreme Court has held that for making a Director of a company liable for the offence under section 141 of the N.I. Act there must be specific averment against the Directors showing as to how and in wha .....

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..... business. This is in consonance with strict interpretation of penal statutes, especially, where such statutes create vicarious liability. A company may have a number of Directors and to make any or all the Directors as accused in a complaint merely on the basis of a statement that they are in charge of and responsible for the conduct of the business of the company without anything more is not a sufficient or adequate fulfillment of the requirements under Section 141. 14. In the case in hand, having considered the statements made in the complaint and also having considered the submissions advanced by the learned counsels of both the sides, this Court is left unimpressed that the aforementioned requirement is fulfilled here in this case. And as such further proceeding against the petitioners, in the learned court below, to the considered opinion of this court, is nothing but an abuse of the process of the court. In Sabitha Ramamurthy Another Vs. R.B.S. Channbasavaradhya (2006) 10 SCC 581, it has been held by the Hon'ble Supreme Court that by verbatim reproducing the wording of the section without a clear statement of fact supported by proper evidence, so as to make the accus .....

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