9911796707
TMI Blog2025 (3) TMI 182X X X X Extracts X X X X X X X X Extracts X X X X ..... of invoice being issued by the complainant, and the balance 50% would be made the next day. Consequently, the complainant sold various licenses to the accused company between the period 17.05.2018 to 16.08.2018. 3. The complainant alleged that though the accused company initially made regular payments towards the invoices raised however, subsequently stopped making the payments. It is further the case of the complainant that the accused company had issued two cheques bearing no. 00119 for Rs. 4,02,31,000/- dated 18.08.2018 and 000179 dated 25.09.2018 for Rs. 3,97,00,000/- drawn on HDFC Bank. The cheque bearing no. 000179 was issued in lieu of cheque no. 000119, after deduction of Rs. 5,31,000/- towards discharge of liability for the payment of outstanding dues by the accused company. The said cheque no. 000179, upon presentation, was dishonoured with remarks "Payment stopped by Drawer" vide return memo dated 27.09.2018. Upon the failure of the accused persons to make the payment despite the service of notice, the respondent filed the subject complaint. 4. The learned counsel for the petitioners submitted that the learned Trial Court has mechanically passed the summoning orders wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the commission of the offence and what was the status of the respondent in the firm. The object of notice before the filing of the complaint is not just to give a chance to the drawer of the cheque to rectify his omission to make his stance clear so far as his liability under Section 138 of the NI Act is concerned. 56. Once the necessary averments are made in the statutory notice issued by the complainant in regard to the vicarious liability of the partners and upon receipt of such notice, if the partner keeps quiet and does not say anything in reply to the same, then the complainant has all the reasons to believe that what he has stated in the notice has been accepted by the noticee. In such circumstances what more is expected of the complainant to say in the complaint. 57. When in view of the basic averment process is issued the complaint must proceed against the Directors or partners as the case may be. But, if any Director or Partner 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 is really not concerned with the issuance of the cheque, he must in order to per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Board of Directors or the officers in charge of the affairs of the 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 judgment 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... discharged of their liability.... The question as to whether or not they were partners in the firm as on 31.03.2004, is one of fact, which has to be established in trial. The initial burden by way of averment in the complaint has been made by the Appellant." 12. The primary responsibility of the complainant is to make specific averments in the complaint so as to make the accused vicariously liable. For fastening the criminal liability, there is no legal requirement for the complainant to show that the accused partner of the firm was aware about each and every transaction. On the other hand, proviso to Section 141 of the Act clearly lays down that if the accused is able to prove to the satisfaction of the Court that the offence was committed without his knowledge or he had exercised due diligence to prevent the commission of such offence, he will not be liable of punishment.... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cheque, or at the time of failure to pay after the receipt of notice. [Ref: S P Mani and Mohan Dairy v. Dr. Snehalatha Elangovan : (2023) 10 SCC 685] 15. Therefore, the Court can exercise its jurisdiction only upon unimpeachable and uncontroverted evidence being placed on record, however, in the absence of such evidence, the fact whether the accused person is responsible for the affairs of the accused company becomes a factual dispute, which is to be seen during trial. 16. In a situation where the accused moves the Court for quashing even before the trial has commenced, the Court's approach should be careful not to prematurely extinguish the case by disregarding the legal presumption supporting the complaint. 17. In Malwa Cotton and Spinning Mills Ltd. v. Visra Singh Sidhu & Ors. : (2008) 17 SCC 147, the Hon'ble Apex Court made certain observations in this regard, which reads as under: "6. As rightly contended by learned Counsel for the appellant factual disputes are involved. What was the effect of delayed presentation before the Registrar of Companies is essentially a matter of trial. Whether respondent No. 1 had intimated the company and whether there was any resolution acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o place some unimpeachable and uncontroverted evidence which is beyond suspicion or doubt. 20. The factual issues that serve as defences in the case are not appropriate for determination under the powers conferred by Section 482 of the CrPC at this stage. It is well-established that this Court should refrain from expressing any views on disputed questions of fact in proceedings under Section 482 of the CrPC, as doing so could pre-empt the findings of the trial court. The relevant paragraphs of Gunmala Sales Private Ltd. Vs. Anu Mehta (Supra) in this respect reads as under: 33. We may summarize our conclusions as follows: a) Once in a complaint filed Under Section 138 read with Section 141 of the NI Act the basic averment is made that the Director was in charge of and responsible for the conduct of the business of the company at the relevant time when the offence was committed, the Magistrate can issue process against such Director; b) If a petition is filed Under Section 482 of the Code for quashing of such a complaint by the Director, the High Court may, in the facts of a particular case, on an overall reading of the complaint, refuse to quash the complaint because the comp ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
