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TMI Blog2020 (3) TMI 989X X X X Extracts X X X X X X X X Extracts X X X X ..... l complaints under Section 138 of the NI Act with similar allegations relating to different cheques which were allegedly dishonoured. In all these complaints, accused No.1 is M/s. Concept Horizon Infra Private Limited (hereinafter to be referred to as 'the Company') through the authorized signatory Jeevesh Sabharwal, Director, accused No.2 is Jeevesh Sabharwal, Director and authorized signatory, accused No.3 is Suninder Sandha, Director and authorized signatory and accused No.4 is Rohan Rajan, authorized signatory (present petitioner) of accused No.1 - Company. Counsel for the petitioner has argued that in all the complaints, it is stated in para Nos.1 to 3 as under:- "1. That the complainant had a MEMORANDUM OF UNDERSTANDING (hereinafter to be referred as MOU) with the accused persons which was executed on 11th of January 2016, at Delhi. In pursuance of the terms of the MOU the details of which has been mentioned in the subsequent paragraphs, certain cheques were issued by the accused no.1, through the authorized signatories, who are accused Nos.2 & 3. Since the cheques issued by the accused persons, the details of which has been mentioned in the subsequent paragraphs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as first party and the complainant - Jagmeet S. Soin as the second party. Counsel for the petitioner has further referred to Clause (4) of this Memorandum of Understanding wherein the disputed cheques numbers are given. It is further submitted that all these cheques are drawn on Punjab and Sind Bank and accused Nos.2 and 3 are the signatories of the cheques and the petitioner/accused No.4 is not a signatory. Counsel for the petitioner has also referred to one of the cheque bearing No.01908 for Rs. 10,000,000/-, which is signed by accused Nos.2 and 3 only. It is further argued that even, in the legal notice issued by the complainant on 25.01.2018, there are no direct allegations against the petitioner that he was In-charge of the day-today business of the Company or is one of the signatory of the cheques. Counsel for the petitioner has lastly, relied upon the list of Director of accused No.1 - Company, to submit that the petitioner is not a Director of accused No.1 - Company. Counsel for the petitioner has also relied upon the judgment "National Small Industries Corporation Limited vs Harmeet Singh Paintal and another", 2010(3) SCC 330, wherein the Hon'ble Supreme Court has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... responsible for the conduct of the business of the company. 16. In the light of the above provision and the language used therein, let us, at the foremost, examine the complainta filed by National Small Industries Corporation Limited and the DCM Financial Services Ltd. 17. In the case of National Small Industries Corpn. Ltd., the High Court has reproduced the entire complaint in the impugned order and among other clauses, clause 8 is relevant for our consideration which reads as under: "8. That the accused No. 2 is the Managing Director and accused No. 3 is the Director of the accused company. The accused No. 2 and 3 are the in-charge and responsible for the conduct of the business of the company accused No.1 and hence are liable for the offences." 18. In the case of DCM Financial Services Ltd., in complaint- Annexure-P2 the relevant clause is 13 which reads as under: "13. That the accused No. 1 is a Company/Firm and the accused Nos. 2 to 9 were in charge and were responsible to the accused No. 1 for the conduct of the business to the accused No. 1 at the time when offence was committed. Hence, the accused Nos. 2 to 9 in addition to the accused No. 1, are liable to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er sub-section (2) of Section 141 of the Act. 39. From the above discussion, the following principles emerge : (i) The primary responsibility is on the complainant to make specific averments as are required under the law in the complaint so as to make the accused vicariously liable. For fastening the criminal liability, there is no presumption that every Director knows about the transaction. (ii) Section 141 does not make all the Directors liable for the offence. The criminal liability can be fastened only on those who, at the time of the commission of the offence, were in charge of and were responsible for the conduct of the business of the company. (iii) Vicarious liability can be inferred against a company registered or incorporated under the Companies Act, 1956 only if the requisite statements, which are required to be averred in the complaint/petition, are made so as to make accused therein vicariously liable for offence committed by company along with averments in the petition containing that accused were in-charge of and responsible for the business of the company and by virtue of their position they are liable to be proceeded with. (iv) Vicarious liability on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... usiness and signatories of the cheques. After hearing the counsel for the parties and going through all the complaints as well as the reply filed by the complainant, I find merit in the present petition for the following reasons:- (a) The complaint is based on a Memorandum of Understanding, which is not signed by the petitioner and is rather signed by accused No.3 - Suninder Sandha. The dishonoured cheques were given to the complainant at the time of signing of the Memorandum of Understanding. (b) The cheque numbers of the disputed cheques are duly mentioned in the body of the Memorandum of Understanding signed by accused No.3 - Suninder Sandha, which show that he was the person In-charge of the Company as he entered into a Memorandum of Understanding on behalf of accused No.1 - Company and had issued the cheques in favour of the complainant. (c) Even the cheques are not signed by the petitioner and the same are signed by accused Nos.2 and 3. (d) In the complaints, the only allegation in para 3 is that accused No.4 - petitioner is In-charge of the affairs of accused No.1 - Company, however, there is no document to support this version and rather in the reply filed by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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