TMI Blog2011 (9) TMI 462X X X X Extracts X X X X X X X X Extracts X X X X ..... s a petition under Section 482 Cr.P.C. seeking quashing of the complaint under Section 9 of the Central Excise and Salt Act, 1944 and the proceedings arising out of the same in the complaint case titled `Shri S.N.Malhotra, Superintendent of Central Excise(Anti-Evasion) Vs. M/s Office Machines Pvt. Ltd and others , qua the petitioner. 2. Briefly stated, facts relevant for the disposal of this petition are that respondent No.1 through Sh.S.N. Malhotra, Superintendent, Central Excise (Anti-Evasion) filed a complaint under Section 9 of the Central Excise and Salt Act, 1944(now known as Central Excise Act, 1944) alleging that the petitioner has indulged in evading Central Excise Duty amounting to Rs. 4,20,234,52 by clandestinely removing/sel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Director of the accused company M/s Office Machines Pvt. Ltd. and in-charge of day-to-day affairs of the company, there is no specific allegation which could, prima facie, show as to how and in what manner the petitioner was in-charge of and responsible for the day-to-day affairs of the company and what duties and functions were being discharged by him so as to bring him within the ambit of Section 9AA of the Central Excise Act. Learned counsel argued that even in the pre-charge evidence, there is no specific averment to bring the case of the petitioner within the ambit of Section 9AA of the Central Excise Act to hold him vicariously responsible for the alleged offence of excise duty evasion committed by the accused company M/s Office Machi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his 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 had exercised all due diligence to prevent the commission of such offence. (2) Notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 141 should be, at the time the offence was committed, in charge of and responsible to the company for the conduct of the business of the company. Every person connected with the company shall not fall within the ambit of the provision. It is only those persons who were in charge of and responsible for the conduct of business of the company at the time of commission of an offence, who will be liable for criminal action. It follows from this that if a director of a company who was not in charge of and was not responsible for the conduct of the business of the company at the relevant time, will not be liable under the provision. The liability arises from being in charge of and responsible for the conduct of business of the compan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The description should be clear. It is true that precise words from the provisions of the Act need not be reproduced and the court can always come to a conclusion in facts of each case. But still, in the absence of any averment or specific evidence the net result would be that complaint would not be entertainable. 11. Legal position which emerges from the aforesaid is that in order to rope in a Director of a company as accused of an offence under Section 138 N.I. Act vicariously with the aid of Section 141 N.I. Act, the complainant is not only required to make a specific allegation that the person concerned was the Director of the company but he is also required to make specific allegation of fact indicating as to how and in what mann ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 9 AA(1) of the Central Excise Act in the complaint. There is no allegation in the complaint to show as to how and in what manner the petitioner was in-charge of and responsible for day-to-day affairs of the business of the company. Even in the pre-charge evidence, the complainant has not led any evidence to explain as to what is the basis of the averment that the petitioner was responsible for the running of day-to-day business affairs of the company in his capacity as a Director. In absence of any specific allegation or evidence in this regard, I am of the considered view that requirement of Section 9AA(1) of the Central Excise Act to hold the petitioner vicariously liable for the offence committed by the company is not satisfied. Thus ..... X X X X Extracts X X X X X X X X Extracts X X X X
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