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2022 (12) TMI 90 - HC - Indian LawsDishonor of Cheque - it is alleged that the petitioner was looking after the day to day affairs of the company - vicarious liability can be fastened against the petitioner under section 141 of the Negotiable Instruments Act or not - HELD THAT:- The Court has gone through the materials on record and finds that admittedly, the petitioner was the Executive Director at the time of issuing of the cheque. In paragraph no.3 of the complaint, it has been clearly averred that the accused nos. 2, 3 and 6 are the Directors of the company and accused nos.4,5,7,8,9 and 10 are responsible for the day to d ay affairs of the company. Thus, in the complaint itself it has been disclosed that this petitioner was not concerned with the day to day affairs of the company. The cheque was issued on 30 .09.2014. This petitioner has resigned on 27.02.2014 which was accepted on 14.11.2014 as contained in annexure 5 series. The cheque was presented on 20.12.2014 which was returned on 22.12.2014 and legal notice was issued on 30.12.2014, the reply by the accused on 17. 01 .2014 and 23.01.2015, respectively and the complaint was filed on 04.02.2015, and the document on record clearly suggest that the petitioner has resigned on 14.11.2014 and the complaint was filed on 04.02.2015. On perusal of the cheque, which has been brought on record in the petition, it is transpired that the cheque in question was issued by the authorized signatory and it has been signed by the accused nos.2 and 3. Admittedly, this petitioner is not the signatory of the cheque in question. Thus, it is crystal clear that vicarious liability under sub section 1 or 2 of section 141 of the Negotiable Instruments Act can be fastened if the person is having the control over the day to day affairs of the company. Looking to the explanation of the said section, it is crystal clear that the firm or the company are required to be made an accused in the complaint and the company has already been made accused in the case in hand, however, such vicarious liability arises only when the company or the firm commits offence as primary offence. In the case in hand, in the complaint it has been stated that this petitioner was only Director and accused nos.4,5,7,8,9 and 10 are made to look after day to day affairs of the company and other accused persons against whom also cognizance has been taken. In the case in hand, it is an admitted fact as averred in the paragraph no.3 of the complaint petition, that the accused nos.4,5,7,8,9 and 10 are looking after the day to day affairs of the company and the petitioner is not the drawer of the cheque and in the light of the judgment of the Hon’ble Supreme Court in the case of S.M.S. Pharmaceuticals v. Neeta Bhalla [2005 (9) TMI 304 - SUPREME COURT] it has been considered later on by the Hon’ble Supreme Court in the case of S.P.Mani [2022 (9) TMI 846 - SUPREME COURT] that the order taking cognizance was erroneous and would not sustain under the eye of law. Application disposed off.
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