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TMI Blog2023 (5) TMI 509X X X X Extracts X X X X X X X X Extracts X X X X ..... A website, and all of them were therefore, responsible for day to day functioning of the accused company. Upon perusal of record, including the minutes of meetings annexed with the present petition, it is revealed that petitioner no. 1 was present in every meeting, minutes of which have been annexed, which prima facie indicate that she was responsible for day to day functioning of the accused company. As far as petitioner no. 2 is concerned, the mere fact that he was, at the relevant time, not present in India does not absolve her of her responsibilities towards the company and at times it may be possible that though one may not be physically present in India, however, in this age of technology one can take part in day-to-day affairs of the company and perform all the acts that a director is required to perform while being in a foreign country. Even otherwise, the veracity of such claims cannot be examined at this stage by this Court. It is also not the case of these petitioners that they were not the whole time directors or were non-functional directors of the accused company - Similarly, the presence of petitioner no. 3 can be seen in majority of the minutes of meetings annexe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amesh Chand Jain (petitioner no. 2) whereas accused no. 6 Tulika Gaharwar (petitioner no. 3) was the Company Secretary. The case of complainant was that it was involved in providing services of air freight, ocean freight, customs house agent, warehousing, distribution, etc, and since it was a member of International Air Transport Association , it used to work as an agent of various airlines and was authorized to provide services of transportation of goods. It was stated that accused company was also an IATA agent but it was not having enough stocks of airlines to satisfy its requirement for cargo transport, and in December, 2016, the complainant and accused company had agreed to carry out business together. It was further stated that complainant used to send its invoices on fortnightly basis and initially, the accused used to pay regularly to the complainant and this continued till September, 2017. However, thereafter, the accused started defaulting in payments to the complainant and the same was duly informed to the accused many times and the same was duly acknowledged by the accused vide its email on 24.03.2018. It was alleged that the last payment made by the accused company wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in the day-to-day affairs of the company. It is also stated that petitioner no. 3 is merely a Company Secretary in the accused company and has no role in the day-to-day affairs of the same. 4. Learned counsel for the respondent/complainant, on the other hand, argues that the complainant has sufficiently complied with the provisions of Section 138/141 of NI Act while filing the complaint and there are sufficient allegations against the present petitioners. It is stated that minutes of meetings of the accused company clearly indicate the presence of petitioners and the fact that they were involved in day-to-day functioning of the business of accused company and were responsible for the issuance as well as dishonoring of cheque in question. It is further stated that since a prima facie case is made out against all the accused persons, the issue regarding role of each accused in dishonoring of cheque is a triable issue and cannot be decided by this Court while exercising powers under Section 482 Cr.P.C. 5. The rival contentions of both the parties have been heard and the material on record has been carefully perused. 6. Before considering the case on its merits, it will be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the offence was committed without his knowledge, or that he had exercised all due diligence to prevent the commission of such offence: Provided further that where a person is nominated as a Director of a company by virtue of his holding any office or employment in the Central Government or State Government or a financial corporation owned or controlled by the Central Government or the State Government, as the case may be, he shall not be liable for prosecution under this Chapter. (2) Notwithstanding anything contained in sub-section (1), where any offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Explanation . For the purposes of this section, (a) company means any body corporate and includes a firm or other association of individuals; and (b) director , in relation to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... charge of the affairs of the company or firm, as the case may be. The other administrative matters would be within the special knowledge of the company or the firm and those who are in charge of it. In such circumstances, the complainant is expected to allege that the persons named in the complaint are in charge of the affairs of the company/firm. It is only the Directors of the company or the partners of the firm, as the case may be, who have the special knowledge about the role they had played in the company or the partners in a firm to show before the court that at the relevant point of time they were not in charge of the affairs of the company. Advertence to Sections 138 and Section 141 respectively of the NI Act shows that on the other elements of an offence under Section 138 being satisfied, the burden is on the Board of Directors or the officers in charge of the affairs of the company/partners of a firm to show that they were not liable to be convicted. The existence of any special circumstance that makes them not liable is something that is peculiarly within their knowledge and it is for them to establish at the trial to show that at the relevant time they were not in charg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esent petition, it is revealed that petitioner no. 1 was present in every meeting, minutes of which have been annexed, which prima facie indicate that she was responsible for day to day functioning of the accused company. As far as petitioner no. 2 is concerned, the mere fact that he was, at the relevant time, not present in India does not absolve her of her responsibilities towards the company and at times it may be possible that though one may not be physically present in India, however, in this age of technology one can take part in day-to-day affairs of the company and perform all the acts that a director is required to perform while being in a foreign country. Even otherwise, the veracity of such claims cannot be examined at this stage by this Court. It is also not the case of these petitioners that they were not the whole time directors or were non-functional directors of the accused company. 11. Similarly, the presence of petitioner no. 3 can be seen in majority of the minutes of meetings annexed with the petition. As observed above, a company secretary can also be held liable as per Section 141(2) of NI Act if it can be proved that the offence has been committed with the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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