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TMI Blog2022 (2) TMI 950X X X X Extracts X X X X X X X X Extracts X X X X ..... in the business of running a TV news channel. ii. It is alleged in the complaint that the petitioner herein and the accused No.2 - Goutham Mootha, who is the son of the petitioner herein, are the directors of India Ahead News Pvt. Ltd. and they are responsible for the day to day affairs of the company and they are running the TV channel and actively controlling all the operations of the company. iii. It is stated in the complaint that the complainant was taken in service by the respondent No.1 at a fixed salary of Rs. 10,00,000/- per month plus GST less TDS (to be deposited by the company under the Income Tax Act) along with monthly expenditure and reimbursement of Rs. 1,50,000/- per month. It is stated that a stake of 10 per cent was also assured to the complainant herein. iv. It is stated that in the year 2019, the salaries of staff including the complainant started getting delayed and even the statutory obligations like the PF, ESI etc. were not being fulfilled by the company. It is stated that since the dues and the arrears of salary were mounting up, at the request of Goutham Mootha (son of the petitioner herein), the complainant herein offered to take a salary cut. v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er is over 80 years of age having several physical ailments and is no longer looking into day-to-day affairs of the company. He contends that the complainant/respondent No.2 being the ex-CFO of the company was well aware of the affairs of the company and he knew who was responsible for the conduct of the business of the company. He states that the averments in the complaint do not reflect the role of each of the directors in the company and summons could not have been issued to the Petitioner. The learned Senior Counsel for the petitioner relies on the following judgments:- i. Ashoke Mal Bafna v. Upper India Steel Mfg. & Engg. Co. Ltd., (2018) 14 SCC 202. ii. Central bank of India v. Asian Global Ltd. & Ors., (2010) 11 SCC 203. iii. ECL Finance Ltd. v. Sukhmani Bedi & Ors., (2018) OnLine Del 11213. iv. N K Wahi v. Shekhar Singh & Ors., (2007) 9 SCC 481. v. NSIC v. Harmeet Singh Paintal & Anr., (2010) 3 SCC 330. vi. Gunmala Sales (P) Ltd. v. Anu Mehta, (2015) 1 SCC 103. vii. Saroj Kumar Poddar v. State, (2007) 3 SCC 693. viii. Ramraj Singh v. State of Madhya Pradesh & Anr., (2009) 6 SCC 729. ix. Pooja Ravinder Devidasani v. State of Maharashtra & Anr., (20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion they are liable to be proceeded with. (vi) If the accused is a Director or an officer of a company who signed the cheques on behalf of the company then also it is not necessary to make specific averment in complaint. (vii) The person sought to be made liable should be in charge of and responsible for the conduct of the business of the company at the relevant time. This has to be averred as a fact as there is no deemed liability of a Director in such cases. (Refer Gunmala Sales Private Limited v. Anu Mehta & Ors., 2015 (1) SCC 103; National Small Industries Corpn. Ltd. v. Harmeet Singh Paintal, (2010) 3 SCC 330; S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla, (2005) 8 SCC 89; S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla, (2007) 4 SCC 70; Saroj Kumar Poddar v. State (NCT of Delhi), (2007) 3 SCC 693; N.K. Wahi v. Shekhar Singh, (2007) 9 SCC 481; N. Rangachari v. BSNL, (2007) 5 SCC 108; Paresh P. Rajda v. State of Maharashtra, (2008) 7 SCC 442; K.K. Ahuja v. V.K. Vora, (2009) 10 SCC 48). 7. The averments made in the complaint read as under:- "2.2 That the Respondent No.1 is a Company registered under the provisions of Companies Act, 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... company makes them vicariously liable for the activities of the defaulter Company as defined under Section 141 of the NI Act? In that perception, whether the appellant had committed the offence chargeable under Section 138 of the NI Act? 25. We are concerned in this case with Directors who are not signatories to the cheques. So far as Directors who are not the signatories to the cheques or who are not Managing Directors or Joint Managing Directors are concerned, it is clear from the conclusions drawn in the afore-stated judgment that it is necessary to aver in the complaint filed under Section 138 read with Section 141 of the NI Act that at the relevant time when the offence was committed, the Directors were in charge of and were responsible for the conduct of the business of the company. 26. This averment assumes importance because it is the basic and essential averment which persuades the Magistrate to issue process against the Director. That is why this Court in S.M.S. Pharmaceuticals Ltd. (supra) observed that the question of requirement of averments in a complaint has to be considered on the basis of provisions contained in Sections 138 and 141 of the NI Act read in the l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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