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TMI Blog2018 (8) TMI 1599X X X X Extracts X X X X X X X X Extracts X X X X ..... 6 of 2017, was impleaded as accused no.4. 2. The brief facts as alleged in the complaint are as follows: (a) Accused no.1 is the company incorporated under the Companies Act and accused nos.2 to 5 are incharge in respect of the company of accused no.1 and at all relevant point of time, have been dealing with the present complainant for and on behalf of the company and had also represented to the complaint that they are also personally responsible for all the affairs in respect of the company. (b) On the basis of the representation made by accused no.2 to 5, the complainant had dealt with accused no.1. Accused represented that they are in the business of construction and as such they are in process of development of residential complex known as "Tulip Garden" on the plot at land bearing survey no.115, village Kandivali. (c) Accused further represented that they are in need of necessary financial assistance for completing the building. Accordingly, accused offered to sell five flats to be constructed in the building in total admeasuring 12.170 sq. feet as against the payment of Rs. 5 crores. It was further agreed that the accused would be entitled to refund money along wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and respondent no.5 therein (accused no.5) filed reply to the said revision application. In the said reply, it was stated that the petitioners herein who are revision applicant in the said revision application as well as the applicant in criminal application no.186 of 2015, has nothing to do with the issuance of cheque. They do not have any role in these transactions. It was further stated that the present petitioners and the applicant in Criminal Application No.186 of 2017, are mere directors and noway connected or responsible for the day to day conduct of business of respondent no.3. They are falsely implicated in this case. It was also stated that only accused no.5 had transacted with the complainant on behalf of the company. The applicant in criminal application no.186 of 2917 also challenged the order of process by preferring Revision Application before the Sessions Court. The said application was numbered as Criminal Revision Application No.78 of 2016. Petitioners herein were impleaded as respondents in the said application. Reply was filed by them opposing revision application preferred by the original accused no.4 and it was contended that accused nos.1, 4 and 5 are also re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is also placed on public notice issued by petitioners intimating public at large not to deal with respondent nos.4 and 5 with respect to property of respondent no.3. It is, thus, contended that, the petitioner were not involved in day to day affairs of company and the petitioners had grievance against conduct of co-accused and their misdeeds. 5. Learned counsel relied upon the decision of the Supreme Court in the case of Gunmala Sales Pivate Limited Vs. Anu Mehta and Ors. Supreme Court in Cri. Appeal No2228 of 2014, decided on 17.10.2014. He also placed reliance upon the compilation of documents in support of his submissions, including, the orders passed by National Company Law Tribunal. Reliance is also placed on the decision of the Supreme Court in the case of Pooja Ravinder Devidasani Vs. State of Maharashtra Supreme Court in Cri.Appeal No.2604-2610 of 2014, deccided on 17.12.2014. 6. Learned counsel for the applicant in criminal application no.186 of 2017, has also made similar submissions on the point of the vicarious liability stipulated under Section 141 of NI Act. It is submitted that the trial Court has mechanically issued process. The Sessions Court has rejected t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er passed by this Court in the case of Arvind Gupta Vs. State of Maharashtra & Another Cri.W.P. No.1307 of 2017, decided on 6.09.2017;, and the decision of the Supreme Court in the case of Indian Bank Association and Ors. Vs. Union of India WritPetition (Civil) No.18 of 2013, decided on 21.04.2014. 10. Having heard both parties and on perusal of documents, it can be seen that the complaint was filed against the accused herein for offence under Section 138 of NI Act and the trial Court has taken cognizance of the same. On perusal of the complaint, it appears that the complainant has alleged that accused nos.2 to 5 are incharge in respect of accused no.1 company and at all relevant point of time have been dealing with the present complainant and had represented to the complainant that they are also personally responsible for all the affairs of the said company. It is further mentioned that on the basis of the representation of the accused no.2 to 5, the complaint had dealt with accused no.1 hereinabove. They had represented that they are in the business of construction and are in the process of development of residential complex and they are in need of necessary financial assistance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce 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 subsection 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: [Provided further that where a person is nominated as a Director of a company by virtue of his holding any office or employment in the Central Government or State Government or a financial corporation owned or controlled by the Central Government or the State Government, as the case may be, he shall not be liable for prosecution under this Chapter.] (2) Notwithstanding anything contained in sub-section (1), where any 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, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s stated that, the petitioners are directors and share holders of company since 2010. Reliance is placed on private website which shows them as Directors and shareholders. It is further stated that the petitioners have attended all Board Meetings and AGM and General Body Meeting of company. In the company petition filed by petitioners before NCLT, it is stated that, petitioners were on Board of Company and respondent nos.4 and 5 were required to report and act under control and direction of the Board of company. In the affidavit-in-reply, filed by complainant in Criminal Application No.186 of 2017, it is stated that the applicant/accused is involved in day to day conduct of business of accused company as well as various other companies, where she is a Director. The list of such companies is annexed to the reply. It is further stated that the applicant had signed the balance sheet of accused company the relevant part of balance sheet for the year ended March 2014 has been annexed to reply. The petitioners in paragraph no.1 of the writ petition No.478 of 2017, it is stated that, the applicant hereinabove and accused no.5 are Directors of accused company who are incharge of day to day ..... X X X X Extracts X X X X X X X X Extracts X X X X
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