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TMI Blog2010 (9) TMI 1295X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. In paras 2 and 8 of the complaint it has been averred as under: Para 2 ---Accused No. 2 is the Managing Director and Chief Executive Officer of accused No. 1 company. Accused No. 3 is the Chief Financial Officer and accused No. 4 is the Chief Operating Officer of the Accused No. 1 company. Accused Nos. 2, 3 and 4 are Incharge of and responsible for the day to day affairs of the accused No. 1 company. Para 8 ---That accused Nos. 2, 3 and 4 are persons incharge and responsible for the day to day affairs of the accused No. 1 company and that the aforesaid cheque was issued to the complainant company with the knowledge of accused Nos. 2, 3 and 4 and therefore are responsible and guilty along with accused No. 1 company for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881. 4. As per the complaint, respondent No. 1 was one of the leading information technology companies in the world and was providing hardware, software, consulting and other related services to its customers in India. Respondent No. 2 was also engaged in the business of providing information technology products and services to its customers. Respondent No. 2 had signed a contrac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , as such, he cannot be held vicariously liable for the offence committed by the company, by taking aid of Section 141 of the Act. 6. The second contention of the Counsel for the petitioner is that mere re-production of the language employed in the Section 141(1) of the Act was not sufficient to make the petitioner liable to face prosecution for the offence committed by the company. No averment had been made in the complaint as to how petitioner was in-charge of the business of respondent No. 2 at the relevant time when the offence was allegedly committed. Each and every officer and/or Director cannot be held responsible under Section 141 of the Act for the offence committed by a company under Section 138 of the Act. Specific averments have to be made against such officer or Director by disclosing the responsibility assigned to such officer/Director so as to make him responsible for day to day conduct of the business of the company at the time when offence had been committed by the company. Reliance has been placed on K.K. Ahuja v. V.K. Vora and Anr. reported in (2009) 10 SCC 48 and National Small Industries Corporation Limited v. Harmeet Singh Paintal and Anr. reported in JT 2010 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hief Operating Officer of respondent No. 2 company and was in-charge and responsible for the day to day affairs of the company, inasmuch as cheques had been issued within his knowledge. Petitioner was not working as an ordinary officer in the company. As per his own admission, initially he was appointed as Vice President, later on promoted to Chief Operating Officer though he claims to have been appointed by ORG Telecom Ltd. He was holding high position and prima facie was in the helm of day to day affairs of the business of the company. Not only this, admittedly, in due course of time he was promoted and transferred to respondent No. 2 as Chief Executive Officer with effect from 14th January, 2009 and then as Additional Director (Professional) with effect from 18th August, 2009. On the face of specific allegations made in the complaint, plea taken by the petitioner that he had been working with ORG Telecom Ltd. as Chief Operating Officer prior to 14th January, 2009 is a matter which requires evidence and can be resolved only after the trial. Copies of the letters issued by ORG Telecom Ltd. cannot be accepted on its face value, without a formal proof being led during the trial, ina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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 provisions of this Act, be punished with imprisonment for 2["a term which may extend to two year"], 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 induce 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 cheque, 3["within thirty days"] of the receipt of information by him from the bank regarding the return of the cheques as unpaid, and (c) The drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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