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TMI Blog2007 (8) TMI 444X X X X Extracts X X X X X X X X Extracts X X X X ..... he development and to regulate the securities market through appropriate measures. 2. It was stated that the last decade had witnessed initiative by private entrepreneurs to undergo plantation activities on a commercial scale. It was noted that promoters would invest minimal amounts in such ventures. They would raise funds from ordinary investors in the absence of regulatory mechanisms. It was stated that the high returns promised under the schemes were questionable. It was stated that in the year 1997 certain guidelines were framed pertaining to plantation companies. 3. Listing out various regulations which require to be complied with in the year 1997 and alleging that the same were not complied with, complaint was filed alleging violati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the memorandum and articles of association of a company. 8. It would be sufficient for me to state that the question as to what is the role of a director in a company is a question of fact. 9. Since criminal liability is foisted upon a director not merely on account of his or her being a director but on account of a conduct, act or omission, there must be an averment in a complaint relatable to the said act or omission. 10. What would be said sufficient averment ? 11. The answer is found in a three-member Bench decision of the Supreme Court in S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla [2005] 127 Comp. Cas. 563 1, wherein it was observed that a clear, unambiguous and specific allegation against a person impleaded as an accused that h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... find in the cases varying formulations of the underlying principle, and the most recent definitions suggest that the courts are prepared today to give the rule of attribution based on identification a somewhat broader scope. In the original formulation in the Lennard's Carrying Co. v. Asiatic Petroleum Co. Ltd. [1915] AC 705 (HL), Lord Haldane based identification on a person 'who is really the directing mind and will of the corporation, the very ego and centre of the personality of the corporation'. Recently, however, such an approach has been castigated by the Privy Council through Lord Hoffman in the Meridian Global Funds Management Asia Ltd. v. Securities Commission [1995] 3 WLR 413, as a misleading 'general metaphysic of companies'. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant and another are the directors of the company, it is further alleged that they are in charge of and responsible to the company for the conduct of the business of the company. We find that such an allegation is clearly made in the complaint which we have quoted above. Learned senior counsel for the appellant argued that in Saroj Kumar Poddar v. State (NCT of Delhi) [2007] 137 Comp. Cas. 837 (SC), this court had found the complaint unsustainable only for the reason that there was no specific averment that at the time of issuance of the cheque that was dishonoured, the persons named in the complaint were in charge of the affairs of the company. With great respect, we see no warrant for assuming such a position in the context of the binding ..... X X X X Extracts X X X X X X X X Extracts X X X X
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