TMI Blog2021 (10) TMI 197X X X X Extracts X X X X X X X X Extracts X X X X ..... he learned Judge has taken cognizance of the fact and as rightly issued the summons against those accused- learned advocate for the petitioners has raised the issue about issuance of process against the accused persons under Section 202 of the Criminal Procedure Code beyond the territorial limits of the Court. Those are issues not required to be dealt with under Section 482 of the Criminal Procedure Code. This Court does not find any reason to interfere in the matter. In the result, present application is dismissed. - R/CRIMINAL MISC.APPLICATION NO. 21367 of 2019, CRIMINAL MISC.APPLICATION (FOR VACATING INTERIM RELIEF) NO. 2 of 2020 , In R/CRIMINAL MISC.APPLICATION NO. 21367 of 2019 - - - Dated:- 27-9-2021 - HONOURABLE MS. JUSTICE GITA GOPI ADITYA R GUNDECHA(8869) for the Applicant(s) No. 1,2 MR NARENDRA L JAIN(5647) for the Applicant(s) No. 1,2 MR NIRAD D BUCH(4000) for the Respondent(s) No. 2,3 MR RAJEN R DELIWALA(2266) for the Respondent(s) No. 2,3 MRS. BHAVINI N. BUCH(5403) for the Respondent(s) No. 2,3 MS MONALI BHATT, APP (2) for the Respondent(s) No. 1 ORDER 1. Present petition is moved under Section 482 of the Criminal Procedure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered into between the complainants and the company for the transaction to issue process against the petitioners. He states that the agreement if perused, it only contains a narration that the petitioners were partners of a partnership firm which was later on converted into a company. There is no other averment in the entire document and only on the basis of the assumption that affairs of the company were managed by the petitioners as a Directors/Officers of the company, process of summons has been issued thus contended that the prosecution against the petitioners would be harsh, creating unnecessary hardship and trauma. Further, learned advocate for the petitioners stated that power of attorney has no personal knowledge in respect of the transaction and therefore too, the issuance of the process by the learned Magistrate is illegal and required to be quashed. To the facts of the case and when no role of the petitioners has been attributed in the complaint, which shows no connection, Mr.Jain, learned advocate for the petitioners submitted that no vicarious liability can be created by the complainants. 5. Mr. Jain, learned advocate for the petitioners has referred to the case of A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dress shown in the cause title. Accused no.1 is engaged in business of construction and development of the immovable properties. Accused no.2 is authorized signatory of accused no.1 company and the complainant has very specifically stated that accused nos.2 to 7 are associated in dealings referred in the complaint and also in charge of the accused no.1 company. 11. Mr. Deliwala, learned advocate stated that accused no.1 through their officials had approached the complainants at Singapore, and the said meeting was made by the accused through Square Yards Consulting Private Limited (Singapore). Accused no.1, through their Directors, had proposed the complainants to invest in their project (Residential) namely, Prisha Hanging Gardens based at Bengalure (Bangalore). All the accused had also shown a very rosy picture about the said project and persuaded the complainants to invest in the said project. 12. Mr. Deliwala, learned advocate submitted that whole of the details as to the agreement of sale has been averred in the complaint. The proposal was by the accused which resulted into agreement of sale and thereafter in accordance with the agreement, down payment of 10% so agreed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e director of the company. 15.1. For accused no.3 and accused no.4 who are petitioners in the present matter, it has been observed by the learned Judge that the complainant has submitted document of agreement of sale vide serial no.2 wherein referring to the details stipulated in para para-1 to 4 of page-3, the learned Judge has recorded that argument of learned advocate for the complainant who submitted that accused no.3 and 4 are the key persons handling the affairs of the accused no.1 company and bears responsibility for and on behalf of the accused no.1 company, accordingly both these accused are vicariously liable for the offence under the complaint. The learned Judge thus found the submission of learned advocate qua accused nos.3 and 4 just and sufficient. 16. For the involvement of accused no.2 in the complaint, the learned Judge observed that the learned advocate for the complainant has relied upon document of agreement of sale vide para no.2 of page-1 who submitted that, main transaction with the complainant was entered into by accused no.2 for and on behalf of accused no.1 and that is how he was represented in the affairs and business of the accused no.1 company. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inancial 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, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. 19. The provision is bifurcated into two parts and it creates constructive liability of a person for the conduct of the business of the company. 20. In the case of K. K. Ahuja (supra), the Hon'ble Apex Court has laid down the position of Section 141 as stated herein under: 27. The position under section 141 of the Act can be summarized 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the company, for the conduct and affairs of the company. In a case, where the Director or an officer of the company who has signed the cheque on behalf of the company, there would not be any need to make any specific averments that they were in charge of and responsible to the company for the conduct of the business of the company nor would necessary to make any specific allegation about consent, connivance or negligence. The very fact that the dishonoured cheque was signed by him on behalf of the company would give rise to the responsibility under Sub-Section (2) of Section 141 of the NI Act. 22. The Apex Court thereafter in the said para, has considered the definition of the Director, Secretary or Manager as provided under the Companies Act and has specifically laid down that in case of such a person, it would be very much necessary to make averments in the complaint that those persons as defined under the Companies Act as Director and Manager were in charge of and responsible for the conduct of the business of the company, to bring their case under Section 141 (1) of the Act. No further averments would be necessary but it is desirable that some particulars are laid down. S ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
