TMI Blog2021 (10) TMI 140X X X X Extracts X X X X X X X X Extracts X X X X ..... to the company for the conduct of the business of the company . In absence of averments in the complaint, that petitioner no.1 is also in charge of the business of the company, the case could not fall under Section 141(1) of the Act. This takes to find out whether, petitioner no.11 being Officer of the Company could be made liable under subsection 2 of Section 141. When verified, the averments in the complaint, are vague and general in nature and do not particularize the role of the petitioner in regard to facility agreement dated 28th March, 2010 executed by the Company with the complainant; nor the complaint discloses that the alleged offence was committed by the Company in connivance or was a result of the negligence of the petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... complainant was directed to verify the position and submit. Accordingly, the respondent no.2 fled an Affidavit of one, Snehal Sane and submitted that petitioners no.7, 9 and 10 are Independent Directors of accused-Company and therefore the complainant is not desirous of pursuing the subject complaint filed against them. 5. In the fact situation, it is to be ascertained whether the complaint against petitioner no.11 a Company Secretary of the accused Company, were maintainable or not. 6. Heard Counsel for the parties. Perused the complaints. 7. Learned Counsel for the petitioners would submit that under Section 141 of the Act, when a cheque issued by a company is dishonoured, in addition to company, following persons are deemed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore, complaint against petitioner no.11 were unsustainable. 9. Learned Counsel, in support of her contentions relied on the judgment of the Hon ble Supreme Court in the case of K.K. Ahuja Versus. V.K. Vora Another, reported in (2009) 10 Supreme Court Cases 48 wherein position under Section 141 of the Act has been summarised; thus; (i) if the accused is the, Managing Director or a Joint Managing Director, it is not necessary to make an averment in the complaint that he is in charge of, and is responsible to the company , for the conduct of the business of the company. It is sufficient, if averment is made that accused was the Managing Director or Joint Managing Director at the relevant time; (ii) in the case of Director ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the business, of the company within the meaning of Companies Act, 1956. To ascertain factual position, whether petitioner no.11, being Company Secretary was in charge of and was responsible to the company for conduct of business, let me read and reproduce relevant averments made in the complaint. 11. The averments in paragraphs no. 2, 3 and 5 of the complaint are : 2. The Complainant states that Accused no.1 is a Limited Company is in the business of Infrastructure. Accused no.2 to 12 are the Directors and CFO and Accused No.13 is Company Secretary of Accused No.1. The Complainant states that Accused No.2 to 13 are looking after and responsible for the day to day affairs, conduct and management of business of Accused No.1. (emph ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner no.11 was in charge of, but to the effect that, he was looking after and responsible for the day-to-day affairs, conduct and management of accused no.1Company. Expression in charge and looking after the affairs, conduct of respondent company, are distinct. Section 141 uses the words was in-charge of, and was responsible to the company for the conduct of the business of the company . In the case of K.K. Ahuja (supra), the Apex Court has held that the, person who can be made vicariously liable under sub-section (1) of Section 141 is a person who is responsible to the company for the conduct of the business of the company, and in addition, is also in-charge of the business of the company (emphasized). However, the averments in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not particularize the role of the petitioner in regard to facility agreement dated 28th March, 2010 executed by the Company with the complainant; nor the complaint discloses that the alleged offence was committed by the Company in connivance or was a result of the negligence of the petitioner no.11. As a consequence, petitioner cannot be made liable under sub-section (2) of Section 141 of the Act. 15. Thus for the foregoing reasons, the petitions succeed. Consequently, Criminal Case No.7854/SS/2016 and Criminal Case No.9698/SS/2016 pending on the file of Metropolitan Magistrate, 33rd Court, Ballard Pier, Mumbai are quashed qua petitioner no.11-accused no.13 in the complaints. 16. Rule is made absolute in the aforesaid terms. Petitions ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
