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TMI Blog2023 (9) TMI 1083X X X X Extracts X X X X X X X X Extracts X X X X ..... any, at the relevant time, when the offence is said to have been committed. Simply because the accused person was a Director or was holding some other office in the company, the vicarious liability cannot be extend to such persons. In SMS PHARMACEUTICALS LTD. VERSUS NEETA BHALLA [ 2005 (9) TMI 304 - SUPREME COURT ], a Three Judge Bench of the Hon ble Apex Court held that to attract vicarious liability under section 141 NIA it is sine qua non that the person accused was in charge of and responsible for the conduct of business of the company at the relevant time when the offence was committed. In SUNITA PALITA OTHERS VERSUS M/S PANCHAMI STONE QUARRY [ 2022 (8) TMI 55 - SUPREME COURT ], wherein the Hon ble Apex Court set aside the order of the High Court rejecting the quashing petition and allowed the said appeal on the ground that the appellants therein were not the Managing Director or Joint managing Director of the accused company and nor were they signatories to the cheques in question. The Court held that the accused persons were merely independent, non-executive directors who had no role to play in the day to day affairs of the accused company. In the present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 35 Rajat Mehta 1974/2020 05.02.2020 787717 206819 24.07.2019 10.12.2019 25.10.2019 36 Rukmani Gupta 9170/2020 01.04.2020 787733 787753 24.07.2019 29.04.2020 25.10.2019 37 Vipin Aggarwal 9169/2020 01.04.2020 787730 787750 24.07.2019 01.05.2020 25.10.2019 38 Manju Gupta 1935/2020 18.02.2020 787697 206910 24.07.2019 10.12.2019 25.10.2019 2. Petitioner is an Indian citizen belonging to the legal profession and practicing before the Courts in Delhi since 2008. 3. Today Homes and Infrastructure Pvt. Ltd (hereinafter referred to as accused company ) is a private limited company having its registered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting to Rs 10,00,000/- each, drawn on Indusland Bank, the same came to be dishonoured. 8. The complainants approached the accused persons/company on several occasions demanding for the remainder payment, however to no avail. Resultantly, the complainants served legal notices to the company, the petitioner (arrayed as director of the accused company), the two authorized signatories i.e., Mr. Naveen Thakur and Mr. Rajesh Kumar, one Mr. Gulshan Kumar Gambhir, Ex Director/Key Person/ Major Shareholder and one Mr. RK Gambhir, Major Shareholder, on their addresses, demanding to make payment of Rs. 20,00,000/- to each complainant within 15 days from the date of receipt of the notices. 9. However, since the requisite payment was not done within the time stipulated, various complaint cases were instituted under section 138 NIA whereby the petitioner has been arrayed as Accused No. 3 and has been summoned in the capacity of a Director of the accused company. 10. Meanwhile, the accused company in Company Petition No. (IB)-2130 (ND) 2019 titled M/s. Dynacon Projects Pvt. Ltd. vs M/s Today Homes and Infrastructure Pvt. Ltd. vide order dated 31.10.2019 came under CIRP and an IRP w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been played or ascribed to the petitioner to attract the vicarious liability under section 141 NIA. Blanket and general accusations have been made mechanically and deliberately to rope in the petitioner. g) In the complaint, the role ascribed to the present petitioner is that he along with other accused persons were the Directors as well as Authorized signatories, engaged in the day-to-day business affairs of the accused company. It has been averred that accused Nos. 2 to 5 (wherein petitioner is Accused no. 3) are liable for all acts and deeds done for and on behalf of the accused company towards discharging its liability. It has been generally averred in the complaints that the accused person(s) not only failed to give possession of the flats within the stipulated time, but also failed to honour the cheques issued towards discharging their liability. 13. It is pertinent to mention that the respondents have not appeared before this Court and have not filed their response to the present petitions. 14. I have considered the submissions and perused the records. This court deems it befitting to not delve into the nitty gritties of the various issues propelled by the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 21. A combined reading of Sections 5 and 291 of the Companies Act, 1956 with the definitions in clauses (24), (26), (30), (31), (45) of Section 2 of that Act would show that the following persons are considered to be the persons who are responsible to the company for the conduct of the business of the company: (a) the Managing Director(s); (b) the whole-time Director(s); (c) the manager; (d) the secretary; (e) any person in accordance with whose directions or instructions the Board of Directors of the company is accustomed to act; (f) any person charged by the Board with the responsibility of complying with that provision (and who has given his consent in that behalf to the Board); and (g) where any company does not have any of the officers specified in clauses (a) to (c), any Director or Directors who may be specified by the Board in this behalf or where no Director is so specified, all the Directors. It follows that other employees of the company, cannot be said to be persons who are responsible to the company, for the conduct of the business of the company. 19. Further the Hon ble Supreme Court in National Small Industries Corpn. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reme Court in Pooja Ravinder Devidasani v. State of Maharastra Anr., (2014) 16 SCC 1. In the said case, the appellant was a housewife and the wife of the MD of the accused company and was arrayed as an accused in the case under section 138 NIA. The High Court refused to quash the petition moved by the appellant. However the Hon ble Apex Court while allowing the appeals held that since the appellant was neither a director of the accused company nor responsible or in charge of the day to day affairs of the company at the time when the offence was committed, therefore, vicarious liability cannot be extended to her. The Court held that there was not a shred of evidence on record to show that the offence was committed by the appellant. Thus in absence of any specific averments qua the accused and since the appellant had already resigned from the Directorship of the accused company prior to the issuance of the cheques in question, the Hon ble Court held that continuing with the criminal proceedings against the appellant would be an abuse of the process of the Courts. 21. This settled law was further crystallised in Sunita Palita Others vs M/s Panchami Stone Quarry, (2022) 10 S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Name of the drawer bank, its location Name of the drawee bank, its location Cheque No. /Nos. Signatory of the cheque/cheques c. Reasons due to which the cheque/cheques were dishonoured; d. Name and Designation of the persons sought to be vicariously liable for the commission of the offence by the accused Company and their exact role as to how and in what manner they were responsible for the commission of the alleged offence; e. Particulars of the legal notice and status of its service; f. Particulars of reply to the legal notice, if any. 23. It is pertinent to mention that the Courts are bound to follow the directions in letter and spirit. A perusal of the FORM 32/ Form No. DIR -12 makes it manifestly evident that the petitioner was only appointed in the capacity of an Additional Director-Non Executive w.e.f. 25.10.2019 in the accused company. A perusal of the complaint reveals that the subject cheques which came to be disounoured were in fact issued on 24.07.2019, which is prior to the date of appointment of the petitioner as an Additional/Non-Executive Director in the accused company. 24. In view of the above it can be ea ..... 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