TMI Blog2017 (2) TMI 1492X X X X Extracts X X X X X X X X Extracts X X X X ..... are jointly liable for the offence. There is no averment whether the petitioner was a Director of the accused-company on the date of issuance of the cheques in question, which were admittedly signed by accused No. 2, the Managing Director. There is no other specific allegation against the petitioner. The question whether the accused-company committed the offence is quite distinct from the question whether the complaint against the company is maintainable or not. The questions need not be gone into in the present proceeding which has been initiated by the petitioner, a Director of the accused-company - Application disposed off. - CRLMC No. 2403 of 2016 - - - Dated:- 2-2-2017 - B.K. Nayak, J. For Appellant: Sanjeev Udgata, Sen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erments made in the complaint petition, the accused (opposite party No. 2) by virtue of an agreement entered into with the complainant-company (opposite party No. 1) acted as a stockist of the products manufactured by the complainant-company and in order to discharge some outstanding debt, the accused-company had given seven number of cheques totally amounting to ₹ 1,10,00,000.00 (Rupees one crore ten lakhs) on 13.03.2015 and that on presentation, the said cheques were dishonoured for the reason account closed as informed by the Banker of the complainant-company. Thereafter, notice was issued in terms of the proviso under Section 138 of the N.I. Act demanding payment and that the accused company having failed to make payment, the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plaint on behalf of the company has been authorised by the Chief Officer of the company, who was given power of attorney by the Board of Directors, among others, to institute criminal proceedings for and on behalf of the company and also to authorise any other person to do the same. It is submitted further that the accused-company being made an accused the petitioner (Director) is also vicariously liable. With regard to vicarious criminal liability of a Director or other Officer of a Company as contemplated in Section 141 of the N.I. Act, Three Judge Bench of the Hon'ble Supreme Court in the case of Aneeta Hada v. M/s. Godfather Travels Tours Pvt.Ltd. AIR 2012 SC 2795 held in paragraph-33 as under: 33. The word 'deemed' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have to be strictly complied with. The conditions are intended to ensure that a person who is sought to be made vicariously liable for an offence of which the principal accused is the Company, had a role to play in relation to the incriminating act and further that such a person should know what is attributed to him to make him liable. After so stating, it has been further held that While analyzing Section 141 of the Act, it will be seen that it operates in cases where an offence under Section 138 is committed by a Company. In paragraph 19 of the judgment, it has been clearly held as follows : There is almost unanimous judicial opinion that necessary averments ought to be contained in a complaint before a person can be subjected to c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been laid down that the entire statute must be first read as a whole, then section by section, clause by clause, phrase by phrase and word by word. The same principle has been reiterated in Deewan Singh and others v. Rajendra Prasad Ardevi and others (45) and Sarabjit Rick Singh v. Union of India (46) Applying the doctrine of strict construction, we are of the considered opinion that commission of offence by the Company is an express condition precedent to attract the vicarious liability of others. Thus, the words as well as the Company appearing in the Section make it absolutely unmistakably clear that when the Company can be prosecuted, then only the persons mentioned in the other categories could be vicariously liable for the offen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Companies and were responsible and liable for the acts of the said Companies, no specific allegation has been made against any of them. The question of proving a fact which had not been mentioned in the complaint did not, therefore, arise in the facts of this case. This has promoted the High Court to observe that the Bank had relied on the mistaken presumption that as Directors, Rajiv Jain, Sarla Jain and the other Directors were vicariously liable for the acts of the Company. Admittedly, except for the aforesaid statement, no other material has been disclosed in the complaint to make out a case against the respondents that they had been in charge of the affairs of the Company and were responsible for its action. The High Court, therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
