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TMI Blog2024 (2) TMI 1294X X X X Extracts X X X X X X X X Extracts X X X X ..... tiate the contentions in the complaint that such Director was incharge of and responsible for conduct of the business of the company unless such Director is designated Managing Director or Joint Managing Director. A bare reading of para 3 of the complaint shows that in the complaint it has not been substantiated that in what manner the petitioner/accused no. 4 was incharge of and responsible for conduct of the business of the accused company, which elaboration was mandatory since the petitioner is neither a signatory to the cheque nor was he the Managing Director or Joint Managing Director of the accused company. This being the position, the complaint is not maintainable against the petitioner. In view of the undisputed status of the petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... outstanding amount due to the respondent company for the aforesaid services rendered to the accused company. The said cheques were issued from 22.05.2015 to 22.06.2015. When the said cheques were presented for encashment, the same were returned unpaid by the drawee bank vide cheque return memo dated 27.07.2015. This was followed by an issuance of a legal demand notice dated 25.08.2015 to the accused company and its directors. 4. On not receiving any reply or payment from the accused within the period of 15 days stipulated in the said notice, the respondent company filed the complaint case against the accused company and its directors. The petitioner was arraigned as accused no. 4 in the complaint. After the pre-summoning evidence, the impu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Somany Ceramics Ltd., 2023 SCC OnLine SC 1299 and Sunita Palita & Ors. vs. M/s Panchami Stone Quarry, (2022) 10 SCC 152, to contend that only the person who, at the time the offence was committed, was in charge of and was responsible to the company for the conduct of the business of the company, as well as the company alone, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished, whereas, the petitioner being a Non-Executive Director cannot be said to be involved in the day-to-day affairs of the company or in the running of its business. 10. Per contra, the learned counsel for the respondent submits that the Petitioner was inducted as an Additional Director of the 'Company', on 16.03.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s were issued from 22.05.2015 till 22.06.2015, when the petitioner was of the one directors of the accused company and his resignation had not come into effect. 13. He further places reliance on the decisions of the Hon'ble Supreme Court in Gunmala Sales Pvt. Ltd. vs. Anu Mehta &Ors., (2015) 1 SCC 103, and S.P. Mani and Mohan Dairy vs. Dr. Snehalatha Elangovan, 2022 SCC OnLine SC 1238, to contend that 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 in the complaint and that he/she is really not concerned with the issuance of the cheque, he/she must in order to persuade the High Court to quash the process either furnish some sterling incon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Director is designated Managing Director or Joint Managing Director. Reference in this regard may be had to the decision of Hon'ble Supreme Court in Sunita Palita and Others. Vs. Panchami Stone Quarry, (2022) 10 SCC 152 wherein it was held as under:- "42. Liability depends on the role one plays in the affairs of a company and not on designation or status alone as held by this Court in S.M.S. Pharmaceuticals [S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla, (2005) 8 SCC 89 : 2005 SCC (Cri) 1975]. The materials on record clearly show that these appellants were independent, non-executive Directors of the company. As held by this Court in Pooja Ravinder Devidasani v. State of Maharashtra [(2014) 16 SCC 1 : (2015) 3 SCC (Civ) 384 : (2015) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... care business and operating by name and style of Vasan Eye Care Hospitals and Vasan Dental Care Hospital. Accused no. 2 is the Chairman/Managing Director of accused no. 1 and accused no. 3 to 6 are the directors of accused no. 1. Accused no. 2 to 6 are all responsible for the day-to-day affairs and management of the accused no. 1" 19. A bare reading of para 3 of the complaint shows that in the complaint it has not been substantiated that in what manner the petitioner/accused no. 4 was incharge of and responsible for conduct of the business of the accused company, which elaboration was mandatory since the petitioner is neither a signatory to the cheque nor was he the Managing Director or Joint Managing Director of the accused company. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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