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TMI Blog2006 (8) TMI 695X X X X Extracts X X X X X X X X Extracts X X X X ..... as accused along with 8 other persons. Thus, the process of law and Court has been misused by respondent No. 1 to unnecessarily harass the old senior citizen. 3. In this case, respondent No. 1 filed criminal complaint No. 115 of 1998 under Section 138 of the Act. In the said complaint, 9 persons have been arrayed as accused. The petitioner has been arrayed as accused No. 9. In the complaint, it has been averred that a Public Limited Company styled as Sagar Sun Estates and Finance Limited issued two post-dated cheques, one for Rs. 10,000/- (principal amount) and another for Rs. 1,608/- (interest) to the complainant in discharge of its liability. The amount of Rs. 10,000/- was deposited by the complainant with the said Company in Fixed Deposit. The said cheques were signed by accused No. 8, the authorised signatory of the said Company. When these cheques were dishonoured, the aforesaid complaint was filed by Smt. Raj Kumari Bhalla through her husband Shri V.M. Bhalla as her agent. 4. In the said complaint, after the preliminary evidence, all the nine accused were summoned by the Trial Court vide order dated 4.7.1998. After his service, the petitioner filed an application for re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arge of and responsible to the Company for the conduct of its business must be clear and specifically disclose that the person was in overall control of the day-to-day business of the Company. Counsel for the petitioner contended that in the instant case, the petitioner was simply a part-time Director. He was not associated in day-to-day affairs of the business of the company. The complainant did not produce any evidence in her preliminary evidence showing that the petitioner was controlling the day-to-day affairs of the Company. In spite of there being no material and clear averment against the petitioner, he was summoned by the Trial Court without application of mind. Counsel for the petitioner also placed on record two affidavits, Annexures P-2 and P-3. one sworn by G. Sagar Suri. the Chairman-cum-Managing Director of the Company and the other sworn by G.S. Chhatwal, the Vice-President of the Company, in which it has been categorically stated that the petitioner has never been a whole-time Director of the Company and he never remained in charge of and responsible for the day-to-day affairs/functioning of the Company. Therefore, summoning of the petitioner in the aforesaid compla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in Meeta Rai v. Gulshan Mahajan 1999 (2) RCR 383 in which in similar circumstances, it was held that on the basis of such an authority letter, no cognizance can be taken for the offence under Section 138 of the Act. 8. On the other hand, Counsel for respondent No. 1 submitted that the averments made in the complaint to the effect that accused Nos. 2 to 9 are in charge of and responsible to the company for the conduct of its business are sufficient to proceed against all the accused under Section 141 of the Act and at this stage, complaint as well as the summoning order cannot be quashed on the ground that the averments made in the complaint are vague and the petitioner was not in charge of and person responsible to the Company for the conduct of its business at the time of commission of the alleged offence by the Company. This question will be determined by the Trial Court after recording of evidence of the parties. Counsel further submitted that in pursuance of the summoning order, petitioner did not appear before the Trial Court and now, he has been declared proclaimed offender, therefore, keeping in view the conduct of the petitioner, the Court should not interfere in the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Supreme Court that though words of Section 142(1) of the Act need not be incorporated in a complaint as magic words but substance of the allegations read as a whole should answer and fulfil the requirements of the ingredients of the said provision. In Katta Sujatha v. Fertilisers Chemicals Travancore Limited and Anr. (supra), the Supreme Court explained the meaning of person in charge by observing that the term person in charge must mean that the person should be in overall control of the day-to-day business of the company or firm. The person may be a party to the policy being followed by a company and yet not be in charge of the business of the company or may be in charge of but not in overall charge or may be in charge of only some part of the business. Thus, in my opinion, in order to fasten vicarious liability against a director of the company, there must be clear, specific and unambiguous allegations made in the complaint. It is not as if every direction of the accused company can be roped in automatically and be proceeded with for the offence committed by the company under Section 138 of the Act. The complainant can proceed only against such persons who at the time of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on filed by the summoned accused. If the summoned accused wants to show that he has been unnecessarily summoned without there being any sufficient ground for proceeding against him, he has remedy to approach this Court under Section 482, Cr.P.C. and this Court has ample power to quash the proceedings, in case it comes to the conclusion that continuation of the proceedings in the Trial Court is an abuse of the process of the Court and the petitioner is being summoned unnecessarily without there being any cogent material against him. 11. In the light of the aforesaid principles, the facts of the present case clearly show that in this case, the Judicial Magistrate has summoned the petitioner on the principle of vicarious liability for the offence committed by the company without there being any clear allegation and sufficient material against him that he was the person in charge of and responsible for the conduct of business of the company at the time of commission of the alleged offence. In the complaint, only it has been averred that accused Nos. 2 to 9 were in charge of and responsible to the company for the conduct of its business. It has not been stated either in the complaint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e party and he can also file a complaint under Section 138 of the Act, but he cannot become a witness on behalf of the party. However, the instant complaint has not been filed by Shri V.M. Bhalla being the general or special power of attorney holder. Exactly the similar controversy was dealt with by this Court in Meeta Rai v. Gulshan Mahajan (supra) where also a complaint under Section 138 of the Act was filed on similar authority letter and this Court observed as under: 4. The facts in the instant case are entirely different and distinct from the case of Surinder Singh (supra) inasmuch as in the instant case, there is no document of General Power of Attorney executed by Smt. Sucheta Mahajan in favour of her husband Shri Gulshan Mahajan and for that matter nor even his document of Special Power of Attorney authorising her husband to do certain acts for and on her behalf. Apart from it, it is relevant to note that the authority letter in nowhere undertakes that the executant, namely, Smt. Sucheta Mahajan would be bound by the acts done and conducted on behalf of her husband in respect of the matter which is the subject matter of authority letter. Learned Counsel for the petitione ..... 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