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TMI Blog2023 (8) TMI 1311X X X X Extracts X X X X X X X X Extracts X X X X ..... obtaining loans from the complainant and issuing the cheques in question. The material placed on record by the petitioner is not sterling incontrovertible material or unimpeachable material to show that petitioner was not involved either in day-to-day activities of the company or had no role in issuance of cheque in question or its dishonouring. Petition dismissed. - HON'BLE MS. JUSTICE SWARANA KANTA SHARMA CRL. M.C. 24/2020 CRL. M.A. 102/2020, CRL. M.C. 1334/2020 CRL. M.A. 5085/2020, CRL. M.C. 1335/2020 CRL. M.A. 5087/2020, CRL. M.C. 1336/2020 CRL. M.A. 5090/2020, CRL. M.C. 1366/2020 CRL. M.A. 5238/2020, CRL. M.C. 5965/2022 CRL. M.A. 23398/2022, CRL. M.C. 5975/2022 CRL. M.A. 23438/2022, CRL. M.C. 5980/2022 CRL. M.A. 23446/2022, CRL. M.C. 5981/2022 CRL. M.A. 23448/2022 and CRL. M.C. 5982/2022 CRL. M.A. 23450/2022 For the Petitioner Through: Mr. Pramod Kumar Dubey, Sr. Advocate along with Mr. Kamal Behal, Mr. Prince Kumar, Mr. Shivam Kumar, Mr. Satyam Sharma and Ms. Aditi, Advocates For the Respondents Through: Mr. Naresh Kumar Chahar, APP for the State. Mr. Murari Kumar and Mr. Achint Kumar, Advocates for R-2. JUDGMENT S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2016 onwards and after repeated requests made by the complainant to repay the amount, the accused persons had issued total five cheques, including cheque bearing number 089768, 089769, 089770 and 089771, all dated 22.08.2016 drawn on Axis Bank Limited, Sector 10A, Gurgaon, each amounting to Rs. 2.5 crores as well as a cheque bearing number 103970, also dated 22.08.2016, drawn on the same bank for Rs. 1.75 crores. Thereafter, the complaint had deposited the aforesaid cheques with its banker i.e. HDFC Bank, Kailash building, KG Marg, New Delhi but to the utter surprise of the complainant, all the cheques had been dishonoured for the reason signature not as per the mandate . Cheque bearing number 089768, 089769 and 089771 had got dishonoured on 23.08.2016 whereas cheque number 089770 and 103970 had got dishonoured on 01.09.2016. Thereafter, the complaint company had issued statutory legal notices dated 31.08.2016 as well as 17.09.2016 seeking repayment of the loan amounts, however, upon failure of the accused to make the payment, the complainant had filed the present complaints under Section 138 and 141 of NI Act. The details of the complaint cases filed by the complainant/respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question. It is also stated that he was not the managing director of the accused company and co-accused Bharat Makkar was the signatory of both loan agreement as well as the cheques. It is further contended that there are no specific averments in the complaint ascribing the role of the petitioner as to how and in what manner he was responsible for the day-to-day affairs of the company and the allegations in the complaint qua the petitioner are bald and vague. Thus it is prayed that in all these petitions, the summoning order against the petitioner be quashed as well as the orders vide which the applications seeking discharge filed by the petitioner were rejected be also set aside. In support of these contentions, reliance has been placed on several decisions of Hon ble Apex Court as well as this Court. 7. Vehemently opposing the relief prayed in these petitions, learned counsel for respondent no. 2 submits that the petitioner had been looking after the affairs of the accused company even before being appointed as a director and had continued to do so even after his purported resignation from the accused company, and the signatory of the cheques in question was only an employee o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice; in writing, to the drawer of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ples with respect to Section 141 of NI Act: 39. From the above discussion, the following principles emerge: (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 who, at the time of the commission of the offence, were in charge of and were responsible for the conduct of the business of the company. (iii) Vicarious liability can be inferred against a company registered or incorporated under the Companies Act, 1956 only if the requisite statements, which are required to be averred in the complaint/petition, are made so as to make the accused therein vicariously liable for offence committed by the company along with averments in the petition containing that the accused were in charge of and responsible for the business of the company and by virtue of their position they are liable to be proceeded with. (iv) V ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 of NI Act had made the following averments against the present petitioner: i. the petitioner and co-accused, representing the accused company, had approached the complainant company in March, 2015 with request to advance loan/financial assistance to meet the working capital requirements to cater to the purchase order received by the accused company; ii. the petitioner and co-accused, for and on behalf of accused company, had negotiated the terms and conditions with assurance that the loan amount would be repaid on due date and the same was secured through purchase orders; iii. the petitioner and co-accused had induced the complainant company to enhance the limit of credit facility; iv. the petitioner and co-accused had exchanged various emails related to the transaction in question; v. the cheques in dispute were handed over by the petitioner and co-accused, representing the accused company, to the complainant company and the complainant company had accepted the same on the representation and assurances of the accused who assured that the account contained sufficient balance and the cheques had been issued towards the discharge of their liability for avail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also clearly distinguishable from the facts of present case. 16. In the case at hand, considering the proximity of time in alleged resignation of the petitioner and issuance of cheque in question and its dishonor, absence of other details and material such as appointment of any new director in place of present petitioner, any board resolution to strengthen the case of petitioner and in view of other reasons mentioned in preceding paragraphs, this Court, at this stage, cannot come to a conclusion, with utmost certainty, as to when had the petitioner actually resigned from the office of Director of accused company and as to whether or not he was involved in dishonoring of the cheques in question, amounting to Rs. 11.75 crores, especially when there are specific averments to the effect that he was involved in the process of obtaining loans from the complainant and issuing the cheques in question. 17. In this background, this Court also takes note of the observations of the Hon ble Apex Court in case of S.P. Mani Mohan Dairy (supra), which read as under: 33. Thus, the legal principles discernible from the aforesaid decision of this Court may be summarised as under: ..... X X X X Extracts X X X X X X X X Extracts X X X X
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