9911796707
TMI Blog2024 (2) TMI 365X X X X Extracts X X X X X X X X Extracts X X X X ..... ger, secretary, or other officer of the Company, with whose consent or connivance of or due to whose neglect the offence has been committed by the company to be deemed to be liable to be proceeded against and punished under Section 138 of the NI Act. In the present case, it is the case of the respondent no. 2 that even the cheque, on the basis of which the complaints have been made, were given by the company and taken by the respondent no. 2 on the assurance of the petitioners herein that the said cheques would be duly honoured at the time of their presentation. These cheques are stated to be given post the date of the alleged resignation of the petitioners. It is also important to note that there were other Directors arrayed as accused in the complaint(s), however, against them such averment is not specifically made. The averments made in the paragraphs 5 and 7 are specifically made against the petitioners herein. In any case, whether this averment of the respondent no. 2 is correct or not, has to be tested during the trial. There are no merit in the challenge made by the petitioners in the present petitions - petition dismissed. - HON'BLE MR. JUSTICE NAVIN CHAWLA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State Anr. 2006 OnLine Del 892; J.N. Bhatia Ors. v. State Anr. 2006 SCC OnLine Del 1598; Ashok Sikka Ors. v. State 2008 SCC OnLine Del 166; and Man Mohan Patnaik v. CISCO Systems Capital India Pvt. Ltd. Ors., 2022 SCC OnLine Del 4652. 5. On the other hand, the learned counsel for the respondent no. 2/complainant submits that specific allegations have been made in the complaint against the petitioner(s) of the complainant having entered into the transaction for the supply of goods by the complainant based on the assurances of the petitioner(s), that they are the in-charge of the day-to-day activities/affairs of the Company and shall be responsible for the acts of omission and commission as well as the conduct of the said Company. He submits that, at the stage of issuing summons to the accused, the learned Trial Court is not to conduct a mini-trial or a roving inquiry, but is to only prima facie find that a case has been made out against the accused person(s). Analysis Findings: 6. I have considered the submissions made by the learned counsels for the parties. 7. At the outset, three important principles of law would have to be kept in mind while co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Complainant at his office and offered to purchase goods and the Accused No. 2, 3, 4 5 had further represented, assured and promised to the Complainant that they shall maintain, financial discipline and punctually pay and discharge all their liabilities for the purchases made by them. It was categorically represented by the Accused No. 2, 3, 4 5 to the Complainant that they are the Directors of M/s A.M. Vinyl Pvt. Ltd. incharge of day to day activities and business of the company and also responsible for the act, omissions and conduct of the said company 3. That upon believing the said representations, false assurances and promises made by the accused's, the Complainant had provided the goods to the Accused's against the Invoices at their complete satisfaction and Accused s accepted the goods against the Invoices. xxxx 5. That thereafter in discharge of their legal liability, the Accused No. 2 3 and on behalf of the other Accused made a settlement with the Complainant, vide dated 22nd August, 2018. xxxx 7. That the Accused No. 2 3 and on behalf of the other Accused had further assured to the Complainant that the above stated cheques ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rporation 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 firm, means a partner in the firm. (Emphasis Supplied) 11. A reading of the above would show that the abovementioned Section is in two parts. While Sub-section (1) of Section 141 makes every person who, at the time the offence was committed, was in charge of and responsible for the day-to-day affairs and conduct o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 charge of the affairs of the company or the firm. 58.3 Needless to say, the final judgement and order would depend on the evidence adduced. Criminal liability is attracted only on those, who at the time of commission of the offence, were in charge of and were responsible for the conduct of the business of the firm. But vicarious criminal liability can be inferred against the partners of a firm when it is specifically averred in the complaint about the status of the partners qua the firm. This would make them liable to face the prosecution but it does not lead to automatic conviction. Hence, they are not adversely prejudiced if they are eventually found to be not guilty, as a necessary consequence thereof would be acquittal. 58.4 If any Director wants the process to be quashed by filing a petition under Section 482 of the Code on the ground that only a bald averment is made ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
