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2022 (10) TMI 916 - GAUHATI HIGH COURTDishonor of Cheque - proceeds against a company which has already been sold out - vicarious liability of the Director - Whether the petitioner No.2, being the Managing Director of the company is responsible as per provision of section 141 N.I. Act, while he had not issued the cheques in question? - HELD THAT:- There is no quarrel at the Bar that before issuing cheques in question, the company has been sold out. Despite the cheques were issued by the accused, which returned unpaid on presentation to the banker due to not availability of the fund in the account of the accused. There is nothing on the record to show that the company was legally forbidden from making payment of the cheque amounts on account of the same being sold out. This being the position the accused persons cannot be allowed to escape from the penal liability and to seek the shield that the company being sold out. In the case in hand the petitioner No.2 had not issued any cheque. There is no averment in the complaint petitions as to how and in what manner the petitioner No.2 was responsible for the conduct of the business of the Company or otherwise responsible to it in regard to its functioning, though an omnibus statement is made in paragraph No.2 of the complaint that he and the accused No.3 and 4 are the person responsible for conduct of the business of the company. How he is responsible for dishonour of the cheque has also not been stated. Nothing is averred in the said Affidavit against the petitioner No. 2 - Shri Shiv Kumar Kanoi, let alone any averment that he was the person responsible for day to day conduct of the affairs of the company. As stated herein, the complainant had made averment against one Joydev Kumar Kanoi as Director the company in the Affidavit. Thus, the bald assertion made in paragraph 2 of the complaint do not satisfy the requirements of Section 141 of the Act. In Pooja Ravinder Devidasani Vs. State of Maharashtra and another, [2014 (12) TMI 1070 - SUPREME COURT], Hon'ble Supreme Court held that putting criminal law into motion is not a matter of course. A Magistrate taking cognizance of an offence under Section 138/141 of the N.I. Act, making a person vicariously liable has to ensure strict compliance of the statutory requirements. The impugned order of taking cognizance against the petitioner No.2 by the learned Addl. Chief Judicial Magistrate, Dibrugarh, under section 138 N.I. Act, dated 30.04.2016, stands set aside and quashed - petition allowed in part.
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