9911796707
TMI Blog2021 (12) TMI 331X X X X Extracts X X X X X X X X Extracts X X X X ..... customers and would place orders on various occasions like marriage seasons and festivals like Akshaya Trithiya and purchased jewellery worth Rs. 96,95,808/- and issued various cheques pertaining to Axis Bank, Kukatpally, assuring that the cheques would be honoured on its presentation. The complainant presented the cheques but the said cheques were returned by the drawee bank with an endorsement "INSUFFICIENT FUNDS". The complainant issued legal notices dated 28.07.2010 to A1 to A9 through RPAD but the said legal notice sent to A1 was returned as 'not claimed.' The notices sent to A2 to A9 were received on 30.07.2010. Inspite of receipt of legal notices as the petitioners failed to pay the cheque amount, within the stipulated time, filed the complaint. 3. Heard the learned counsel for the petitioners. There is no representation for the 2nd respondent - complainant. 4. Learned counsel for the petitioners submitted that the petitioners were the Directors of M/s.SV Jewellers Pvt. Ltd., a private limited company dealing with jewellery business. The Directors of said company due to domestic problems resigned from 02.07.2010 disconnecting their relationship with the said company. As s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... read with 141 of NI Act. The cheques would disclose that they were issued by A2 in the capacity of the Managing Director of the A1 company. They were not signed by the petitioners. 7. It was contended by the learned counsel for the petitioners that the petitioners resigned to the post of Director and had filed Form No.32 before the Registrar of Companies with effect from 02.07.2014. But as they were continuing as Directors in the company by the date of issuing the alleged cheques, the said point is considered not material to decide the issue. 8. The Hon'ble Apex Court in SMS Pharmaceuticals Ltd. v. Neeta Bhalla and Ors. (2007) 4 SCC 70, held that: "It is necessary to specifically aver in a complaint under Section 141 of the Negotiable Instruments Act, 1881 that at the time the offence was committed, the person accused was in charge of, and responsible for, the conduct of business of the company. This averment is an essential requirement of Section 141 and has to be made in a complaint. Without this averment being made in a complaint, the requirements of Section 141 cannot be said to be satisfied. Merely being a director of company is not sufficient to make the person liable und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... son, the section would have said every Director, Manager or Secretary in a company is liable... etc. The Legislature is aware that it is a case of criminal liability which means serious consequences so far as the person sought to be made liable is concerned. Therefore, only persons who can be said to be connected with the commission of a crime at the relevant time have been subjected to action. The liability arises on account of conduct, act or omission on the part of a person and not merely on account of holding an office or a position in a company. Therefore, in order to bring a case within Section 141 of the Act, the complaint must disclose the necessary facts which make a person liable." In K.K.Ahuja v. V.K.Vora and Another (2009) 10 SCC 48, the Hon'ble Apex Court held that: "If a mere reproduction of the wording of section 141(1) in the complaint is sufficient to make a person liable to face prosecution, virtually every officer/employee of a company without exception could be impleaded as accused by merely making an averment that at the time when the offence was committed they were in charge of and were responsible to the company for the conduct and business of the compan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were in charge of and are responsible to the company, for the conduct of the business of the company. (ii)In the case of a director or an officer of the company who signed the cheque on behalf of the company, there is no need to make a specific averment that he was in charge of and was responsible to the company, for the conduct of the business of the company or 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 responsibility under sub-section (2) of Section 141. (iii) In the case of a Director, Secretary or Manager (as defined in Sec. 2(24) of the Companies Act) or a person referred to in clauses (e) and (f) of section 5 of Companies Act, an averment in the complaint that he was in charge of, and was responsible to the company, for the conduct of the business of the company is necessary to bring the case under section 141(1). No further averment would be necessary in the complaint, though some particulars will be desirable. They can also be made liable under section 141(2) by making necessary averments relating to consent and connivance or negligence, i ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
