TMI Blog2016 (9) TMI 965X X X X Extracts X X X X X X X X Extracts X X X X ..... DRAJOG, J. (Oral) 1. The matter was listed for September 13, 2016 which was declared a holiday and therefore is being taken up today. 2. The petitioner by way of present petition prays quashing of the criminal complaint bearing CC No.1780/1 (old number CC 3864/11) and CC No.1781/1 (old number CC 3864/11/2011) under Section 138 read with Section 141 of the Negotiable Instruments Act (hereinafter referred to as Act ), titled Countrywide Promoters Pvt. Ltd. Vs. Era Landmarks Ltd. Ors and the summoning order (s) dated March 01, 2011 and May 14, 2013 and all proceedings arising there from. 3. The brief facts necessitating the disposal of the present petitions are that the accused company, in which the petitioner was alleged to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er . The complainant company sent a demand notice to the accused company vide letter dated January 17, 2011 demanding the payment of the aforesaid amount of ₹ 13,03,39,100. The accused company replied to the demand notice stating that the cheques were handed over to the complainant merely as security and not for the satisfaction of any debt or liability. It resulted in above noted complaints as also another complaint, with which I am not concerned, being filed by the complainant in the Court of the learned Metropolitan Magistrate, in which after recording pre-summoning evidence the company and its Directors, including the petitioner have been summoned. 4. It is the case of the petitioner that at the time when the alleged offenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een the parties were not vague so as to discharge the petitioner from the ambit of Section 141 of the Act. Relying upon the decision reported as AIR 2005 SC 3512 S.M.S Pharmaceuticals Ltd. Vs. Neeta Bhalla Anr., it is the case of the complainant company that liability under Section 141 of the Act can be cast on the persons who may have something to do with the transaction complained of. A person who is incharge of and responsible for conduct of business of the company would naturally know why the cheque in question was issued and why it got dishonoured. It is the case of the complainant company that in the present case the complaint clearly states that the petitioner played an active role in the transaction between the parties and hence c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the complaint would also serve the purpose that the person sought to be made liable would know what is the case which is alleged against him. This will enable him to meet the case at the trial. 16. In view of the above discussion, our answers to the questions posed in the Reference are as under: (a) It is necessary to specifically aver in a complaint under Section 141 that at the time the offence was committed, the person accused was in charge of, and responsible for the conduct of business of the company. This averment is an essential requirement of Section 141 and has to be made in a complaint. Without this averment being made in a complaint, the requirements of Section 141 cannot be said to be satisfied. (b) The a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the Directors of the Company are in charge of affairs of the Company. If any restrictions on their powers are placed by the memorandum or Articles of the Company, it is for the Directors to establish it at the trial. It is in that context that Section 141 of the Negotiable Instruments Act provides that when the offender is a Company, every person, who at the time when the offence was committed was in charge of and was responsible to the company for the conduct of the business of the Company, shall also be deemed to be guilty of the offence along with the Company. 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not liable is something that is peculiarly within their knowledge and it is for them to establish at the trial such a restriction or to show that at the relevant time they were not in charge of the affairs of the Company. 10. In view of the fact that the petitioner had ceased to be a director of the accused company on November 12, 2009, which fact is apparent from Form 32 submitted to the Registrar of Companies, the fact that he was a director of the company when the negotiations took place would be irrelevant. 11. I note that Crl.M.C.No.3060/2011 filed by the instant petitioner concerning three cheques which were issued to the complainant company was allowed and summoning order qua him was quashed. 12. Thus, the two p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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