TMI Blog2008 (8) TMI 877X X X X Extracts X X X X X X X X Extracts X X X X ..... ge or that he had exercised all due diligence is exempted from becoming liable by operation of the proviso to sub-section (1). The burden in this regard has to be discharged by the accused. Therefore, the High Court was not justified in quashing the proceedings so far as respondent No.1 in the first case is concerned. The appeal is allowed. - CRIMINAL APPEAL NO. 1265 OF 2008 - - - Dated:- 13-8-2008 - Dr. ARIJIT PASAYAT AND DR. MUKUNDAKAM SHARMA, JJ. JUDGMENT Dr. ARIJIT PASAYAT, J. SLP (Crl.) 6049/2005 1. Leave granted. 2. Challenge in this appeal is to the order passed by a learned Single Judge of the Punjab and Haryana High Court accepting the prayer of respondent No.1 for quashing the proceedings pending before th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he High Court was not justified in holding that there was no specific allegation against other accused persons. With reference to the complaint it was pointed out that specific allegation is to the effect that the accused persons were in charge of day to day management work. In any event, this is not a question which could have been gone into in a proceeding under Section 482 of Code. It is a matter of trial. 5. Learned counsel for respondent No.1 on the other hand submitted that the High Court was justified in its view that respondent No.1 had intimated the company about his desire to resign. If the company delayed in submitting the requisite form before the Registrar of Companies, he cannot be made to suffer. 6. As rightly contended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recording statement of marketing manager who had filed the complaint for himself and on behalf of the complainant-company, issued summons to all the accused persons for facing trial for alleged commission of offences punishable under Section 138 of the Act read with Sections 420 and 114 of the Indian Penal Code, 1860 (in short the `IPC'). The order issuing summons was challenged by filing criminal revision applications which were dismissed by order dated 21.3.1996. Said common judgment and order was challenged before the High Court by filing special criminal applications and these applications were permitted to be withdrawn to enable the appellants to move applications before the learned Chief Judicial Magistrate as stated by the petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the application of the deeming provision exist or not is again a matter for adjudication during trial. Similarly, whether the allegations contained are sufficient to attract culpability is a matter for adjudication at the trial. 9. Under Scheme of the Act, if the person committing an offence under Section 138 of the Act is a company, by application of Section 141 it is deemed that every person who is in charge of and responsible to the company for conduct of the business of the company as well as the company are guilty of the offence. A person who proves that the offence was committed without his knowledge or that he had exercised all due diligence is exempted from becoming liable by operation of the proviso to sub-section (1). The bur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It appears to us that an allegation in the complaint that the named accused are Directors of the company itself would usher in the element of their acting for and on behalf of the company and of their being in charge of the company. In Gower and Davies' Principles of Modern Company Law (17th Edn.), the theory behind the idea of identification is traced as follows: It is possible to 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 Lennard's Carrying Company case (1915 AC 705 (HL) Lord Haldane based identification on a person ..... X X X X Extracts X X X X X X X X Extracts X X X X
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