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TMI Blog2024 (3) TMI 789X X X X Extracts X X X X X X X X Extracts X X X X ..... apet, Chennai), in connection with the offence punishable under Section 138 read with Section 142 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "the N.I. Act"). 3. The facts, in brief, giving rise to the present appeals are as follows: 3.1 M/s. Bharti Airtel Limited (hereinafter referred to as, "complainant" or "respondent"), is a company engaged in the business of providing telecommunication services, under a license issued by the Government of India, in various telecom circles in India. 3.2 One M/s. Fibtel Telecom Solutions (India) Private Limited (hereinafter referred to as, "Fibtel Telecom Solutions" or "Company"), a company registered with the Telecom Regulatory Authority of India (TRAI) as a telemarketer, had approached the respondent intending to obtain telecom resources for the purpose of transactional communication and requested the complainant for allotment of telecom resources for the said purpose. One Manju Sukumaran Lalitha is the Director & Authorized Signatory of Fibtel Telecom Solutions and one Susela Padmavathy Amma, the appellant herein, is the Director of Fibtel Telecom Solutions. 3.3 Based on the representation made by Fibtel Telecom So ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 2017 dated 23rd December, 2016, before the learned XVIII Metropolitan Magistrate, Saidapet, Chennai. 3.7 Both the complaints have been filed against three accused persons namely, Fibtel Telecom Solutions, arrayed as Accused No. 1; Manju Sukumaran Lalitha, arrayed as Accused No. 2 & Susela Padmavathy Amma, the appellant herein, arrayed as Accused No. 3. 3.8 Accused No. 3, who is a female senior citizen and the Director of Fibtel Telecom Solutions, filed Crl. O.P. No. 3470 of 2019 against C.C. No. 3151 of 2017 & Crl. O.P. No. 5767 of 2019 against C.C. No. 3150 of 2017, before the High Court under Section 482 of the CrPC for quashing of the criminal complaints qua her. 3.9 Vide impugned judgment and order, dated 26th April, 2022, the High Court dismissed Crl. O.P. Nos. 3470 & 5767 of 2019 and Crl. M.P. Nos. 2224, 2225 & 3255 of 2019, but directed the concerned trial court to dispose of the case within a period of three months. 3.10 Aggrieved by the rejection of the petition for quashing of criminal complaints, the appellant herein filed the present appeal. 3.11 Vide order dated 12th December 2022, this Court had issued notice and stay of further proceedings qua the appellant wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ompany, as well as the company shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly: Provided that nothing contained in this sub-section shall render any such person liable to any punishment provided in this Act if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence." It is thus seen that the vicarious liability of a person for being prosecuted for an offence committed under the Act by a company arises if at the material time he was in charge of and was also responsible to the company for the conduct of its business. Simply because a person is a director of the company it does not necessarily mean that he fulfils both the above requirements so as to make him liable. Conversely, without being a director a person can be in charge of and responsible to the company for the conduct of its business. From the complaint in question we, however, find that except a bald statement that the respondents were directors of the manufacturers, there is no other allegation to indicate, even prima facie, that they were in charge of the company and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge of its everyday affairs. It was, therefore, necessary, to aver as to how the director of the company was in charge of day-to-day affairs of the company or responsible to the affairs of the company. This Court, however, clarified that the position of a managing director or a joint managing director in a company may be different. This Court further held that these persons, as the designation of their office suggests, are in charge of a company and are responsible for the conduct of the business of the company. To escape liability, they will have to prove that when the offence was committed, they had no knowledge of the offence or that they exercised all due diligence to prevent the commission of the offence. 11. In the case of Pooja Ravinder Devidasani vs. State of Maharashtra and another (2014) 16 SCC 1 this Court observed thus: "17. ...... Every person connected with the Company will not fall into the ambit of the provision. Time and again, it has been asserted by this Court that only those persons who were in charge of and responsible for the conduct of the business of the Company at the time of commission of an offence will be liable for criminal action. A Director, who was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, there must be specific averments against the Director showing as to how and in what manner the Director was responsible for the conduct of the business of the company. 21. In Sabitha Ramamurthy v. R.B.S. Channabasavaradhya [Sabitha Ramamurthy v. R.B.S. Channabasavaradhya, (2006) 10 SCC 581 : (2007) 1 SCC (Cri) 621] , it was held by this Court that: (SCC pp. 584-85, para 7) "7. ... it is not necessary for the complainant to specifically reproduce the wordings of the section but what is required is a clear statement of fact so as to enable the court to arrive at a prima facie opinion that the accused is vicariously liable. Section 141 raises a legal fiction. By reason of the said provision, a person although is not personally liable for commission of such an offence would be vicariously liable therefor. Such vicarious liability can be inferred so far as a company registered or incorporated under the Companies Act, 1956 is concerned only if the requisite statements, which are required to be averred in the complaint petition, are made so as to make the accused therein vicariously liable for the offence committed by the company." ( emphasis supplied ) By verbatim reprodu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other words, the law laid down by this Court is that for making a Director of a Company liable for the offences committed by the Company under Section 141 of the Act, there must be specific averments against the Director showing as to how and in what manner the Director was responsible for the conduct of the business of the Company." 16. A similar view has been taken by this Court in the case of Lalankumar Singh and others vs. State of Maharashtra 2022 SCC OnLine SC 1383 to which one of us (B.R. Gavai, J.) was a party. 17. In the light of this settled legal position, let us examine the averments made in the complaints. 18. It will be relevant to refer to para 16 of the complaint bearing No. CC 3151/2017 filed by the respondent before the Court of XVIII Metropolitan Magistrate, Saidapet, Chennai dated 30th November 2016, which reads thus: "16. The Complainant states that the Accused has an intention of cheating the Complainant. The 2nd and 3rd Accused herein has no intention to pay the dues that they owe to the Complainant. Instead, making the complainant believe that the same would be paid and through which trying to push the liability to future. It is also pertinent to note ..... X X X X Extracts X X X X X X X X Extracts X X X X
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