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TMI Blog2007 (9) TMI 717X X X X Extracts X X X X X X X X Extracts X X X X ..... n 138 read with Section 141 and 142 of the Negotiable Instruments Act 1881 alleging that M/s.Jhalani Tools (India) Ltd. (impleaded as accused No.1) had instructed the complainant to render services of settling its dues with banks and financial institutions. That in lieu of services rendered by it, a cheque in sum of Rs.7,30,50,000/- dated 24.5.2004 drawn on State Bank of India was issued in the name of the complainant. That when presented for encashment, the cheque was returned dishonoured with the advice 'account closed'. That in spite of calling upon the accused company to pay the amount under the cheque none was paid. 3. P.C.Jhalani, Y.C.Jhalani, Pradeep Jhalani, Sandeep Jhalani, Anoop Jhalani and Ashok Jhalani were impleaded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the directors of the company as averred in para 2 of the complaint, contents noted in para 4 above, it is to be noted that the complainant has stated that accused No.2 to 7 are the managing director and directors of accused No.1. In said para it is thereafter averred that all the managing directors and directors are supervising the affairs of accused No.1. 12. It has not been stated as to who is the managing director and who are the directors. Even in the pre-summoning evidence led by means of an affidavit filed by Sanjay Sabharwal, director of the complainant, accused No.2 to 7 are stated to be the managing director and directors of accused No.1, without specifying as to who is the managing director and who are the directors. 13. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt must bring out as to on what basis it is being alleged that the person concerned, as director of the company, was responsible for the conduct of the business of the company and was in charge of the affairs of the company. 19. In the decision reported as AIR 1983 SC 67, MCD vs. Ram Kishan Rohatgi, under noted averments in para 5 of the complaint were a subject matter of consideration by the Supreme Court:- 5. That the accused No.3 is the Manager of accused No.2 and accused Nos.4 to 7 are the Directors of accused No.2 and as such they were in charge of and responsible for the conduct of business of accused No.2 at the time of sampling. 20. In para 14 and 15, their Lordships of the Supreme Court held as under:- 14. Relian ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facie on the allegations made in the complaint and the proceedings against them were rightly quashed. 21. It is apparent that with reference to the use of expression 'as such' the Hon'ble Supreme Court held that it amounted to a presumption drawn by the complainant and not a positive statement that the concerned director was in charge of and responsible for the conduct of the business of the company. 22. In the instant case, use of the word 'therefore' in para 2 of the complaint reveals that the complainant sought to fasten liability on the directors only on account of they being the directors. To put it differently, the complaint is founded on the basis that because certain persons are the directors of a compan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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