TMI Blog1998 (8) TMI 632X X X X Extracts X X X X X X X X Extracts X X X X ..... or, accused No. 2, in favor of respondent No. 1 for purchasing certain goods from them. The said cheques, on presentation were received back unpaid with the remark insufficient funds . Thereupon, a legal notice was issued on behalf of respondent No. 1 to the affronted company demanding payment and there being no response to the notice, a complaint under the said section was filed against the company, and its three directors, viz., the chairman-cum-managing director and the petitioners, the other two directors of the company. After pre-summoning evidence, all the named accused were summoned and charge under Section 138 of the Act was framed against all of them. 3. The present petition has been filed by the two directors (other than chair ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to agree with learned counsel for respondent No. 1. Section 141 of the Act reads as follows : 141. Offences by companies-- (1) If the person committing an offence under Section 138 is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly : Provided that nothing contained in this sub-section shall render any person liable to punishment 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n committed with the consent or connivance of the person falling in that category or is attributable to him, for which there should be averments in the complaint or prima facie proof for it. The section being penal had to be construed strictly. The initial onus to prove that a person was in charge of and was responsible to the company for the conduct of its business at the relevant time is obviously on the complainant. Even after the complainant discharges the initial onus as per proviso to the said section, the person accused can still prove that the offence committed by the company was without his knowledge or that he had exercised due diligence to prevent the commission of such offence. There is no gainsaying that the stage to prove that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Section 141 of the Act. 11. With utmost respect, I am unable to subscribe to the view expressed by a learned single judge of the Madras High Court in N. Doraisamy v. Archana Enterprises [1995] 2 CCC 378 ; [1999] 97 CC 129 to the effect that even in the absence of specific averments in the complaint with regard to the responsibility of a person vis-a-vis the company, in relation to its business, a prosecution can be launched against those, who had been just named in the complaint. 12. For the foregoing reasons, the impugned order dated August 17, 1996, to the extent it proceeds to frame charge against the petitioners under Section 138 of the Act is set aside and the petitioners are discharged. 13. The petition stands disposed of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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