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Smt. Chanda Shukla W/o Late Vinod Kumar Shukla Versus Sudhir Pandey S/o Baldau Prasad Pandey

2017 (12) TMI 391 - CHHATTISGARH HIGH COURT

Dishnour of cheque - cognizance under Section 138 of NI Act - Held that:- The averments of the complaint do not disclose about any specific allegation about the role played by the respondent to project that he was also instrumental for issuance of cheque. Predominately the allegations have been attributed against the company itself alone to isolation to others. Therefore, prima facie reading of the complaint do not specify the fact that the pleadings have been made to bring the case within Secti .....

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ny and has issued the cheque for and on behalf of the company the complaint against him cannot be sustained. The complaint only purports that the money was invested in the company at the instance of the respondent for return of inflated healthy sum. The complaint is silent about the role of respondent and responsibility for issuance of cheque on behalf of the company. Therefore, in case of dishonour of any cheque issued by the company the liability cannot be fastened under Section 138 of the Act .....

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the Chief Judicial Magistrate, Sarguja (Ambikapur) dated 17.09.2013 was set aside. 3. Learned counsel for the petitioner submits that a cheque was given by the company namely N.B. Plantation Limited in lieu of the maturity of amount of bond. However, when the cheque was lodged with the Bank, the same was dishonored with an endorsement that the account was closed and no averment was there in the account. Consequently, a complaint was filed under Section 138 of the Act, 1881 and the Court of JMFC .....

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heque. The said order of revisional Court is under challenge. It is contended by the petitioner that the order of the Court of JMFC was well merited about taking of the cognizance and revisional Court has committed an error to quash the same at the threshold. It is stated that the order of revisional Court suffers with illegality since complaint was at the primary stage, therefore, the fact that who was responsible for issuing such cheque could not be decided by the revisional Court without any .....

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gh the Manager of the Company. Out of the accused as arrayed one accused namely Sudhir Pandey, had preferred the revision, on the grounds that nothing has been stated against him in the complaint as to how he was responsible for issuance of cheque yet the cognizance has been taken. The averments made in the petition under Section 138 of the Act, would show that the omnibus allegations have been made against Sudhir Pandey. The complainant has not made any specific statement in the complaint under .....

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another AIR 2005 SC 3512 has held as under in para 19 & 20:- 19. To sum up, there is almost unanimous judicial opinion that necessary averments ought to be contained in a complaint before a person can be subjected to criminal process. A liability under Section 141 of the Act is sought to be fastened vicariously on a person connected with a company, the principal accused being the company itself. It is a departure from the rule in criminal law against vicarious liability. A clear case should .....

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cess. We have seen that merely being described as a director in a company is not sufficient to satisfy the requirement of Section 141. Even a non-director can be liable under Section 141 of the Act. The averments in 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. 20. In view of the above discussion, our answers to the questions posed in the reference a .....

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egative. Merely being a director of a company is not sufficient to make the person liable under Section 141 of the Act. A director in a company cannot be deemed to be in charge of and responsible to the company for the conduct of its business. The requirement of Section 141 is that the person sought to be made liable should be in charge of and responsible for the conduct of the business of the company at the relevant time. This has to be averred as a fact as there is no deemed liability of a dir .....

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t of business of the company. Therefore, they get covered under Section 141. So far as signatory of a cheque which is dishonoured is concerned, he is clearly responsible for the incriminating act and will be covered under sub- section (2) of Section 141." 6. Further the aforesaid principle is reiterated in the case of Aneeta Hada Vs. Godfather Travels and Tours Private Limited (2012) 5 SCC 661, wherein it is held in para 39:- 39. The word deemed used in Section 141 of the Act applies to the .....

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ers of the company and as there is a specific provision extending the liability to the officers, the conditions incorporated in Section 141 are to be satisfied. 7. The perusal of the complaint in this case under Section 138 of the Act, 1881 would show that three persons i.e. (1) Sandeep Maheshwari, (2) Manager, N.B. Plantations Limited & (3) Shri Sudhir Pandey, have been made accused. All the allegations of complainant under Section 138 of the N.I. Act would show that averments were made tha .....

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