TMI Blog2022 (2) TMI 1161X X X X Extracts X X X X X X X X Extracts X X X X ..... e attributable to the said accused and as to how he was responsible for the conduct and affairs of the company. In the facts of the present case, the only averment in the complaint is that the remaining accused persons are directly responsible for day to day affairs of the accused No.1 company. Considering the fact that the petitioner is neither the signatory nor the Managing Director of the company nor is there any averment in the complaint as to how the petitioner is responsible and Incharge of the day to day affairs and conduct of the company, nor does the complaint attribute any conduct, act or omission on the part of the petitioner which would be sufficient to hold him vicariously liable for the act of the company, the impugned order summoning the petitioner is liable to be set aside. The impugned order of the learned Metropolitan Magistrate is set aside - Petition allowed. - CRL.M.C. 1731/2021 - - - Dated:- 8-2-2022 - HON'BLE MS. JUSTICE MUKTA GUPTA Petitioner Represented by : Mr. Rajeev Sharma, Advocate. Respondent Represented by : Mr. Tarang Srivastava, APP for the R-1/State. Mr. Shikhar Srivastava, Advocate for R-2. MUKTA GUPTA, J. (ORAL) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of S.M.S. Pharmaceuticals Ltd. (supra) has no application to the facts of this case as the Hon ble Supreme Court in the said matter was dealing with the responsibilities of the Directors and held that the Directors who are responsible for the day to day functioning of the accused company would be responsible for the dishonour of the cheque. Petitioner being the Finance Head of the company would be deemed to be responsible for all the financial irregularities of the company including dishonour of the cheque. Reliance is placed on the decision of this Court reported as III (2012) CCR 45 (Del) P.P.Marina and Ors. Vs. State and Ors. as also on the decision in S.M.S. Pharmaceuticals Ltd. (supra). 5. Contention of learned counsel for the respondent No.2 that petition is liable to be dismissed on the ground of delay and laches deserves to be rejected for the reason, no period of limitation is prescribed for filing a petition under Section 482 Cr.P.C. which inherent power of the Court is required to be exercised to meet the ends of justice and to prevent abuse of the process of law. Further, even though, no period of limitation has been prescribed for filing a petition u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rsons was in para 3 which reads as under:- 3. That the Accused No. 1 Company in the month of May-June 2017, approached Complainant for executing of certain printing jobs on priorities of textbooks. The Accused No. 1 Company assured Complainant of timely payments and requested to execute the work immediately, as the Accused No. 1 was in urgent requirement of such printed books. Accused No. 3 is the authorized signatory of the Accused No. 1 Company, while remaining accused persons are directly responsible for day to day affairs of the Accused No. 1 Company . 8. As noted above, the accused No. 1 is the company in whose name the cheque was issued and the accused Nos. 2 and 3 were the Director and Managing Director of the company and signatories to the cheque. However, the petitioner was arrayed as accused No. 4 being the Finance Head of the accused company against whom there is no specific allegation except stating in para 3 of the complaint that the remaining accused persons were directly responsible for day to day affairs of the accused No. 1 company. 9. In National Small Industries Corporation Ltd. (supra), the Hon ble Supreme Court culled out the principles for fixing t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... most unanimous judicial opinion that necessary averments ought to be contained in a complaint before a person can be subjected to criminal process. A liability under Section 141 of the Act is sought to be fastened vicariously on a person connected with a Company, the principal accused being the company itself. It is a departure from the rule in criminal law against vicarious liability. A clear case should be spelled out in the complaint against the person sought to be made liable. Section 141 of the Act contains the requirements for making a person liable under the said provision. That respondent falls within parameters of Section 141 has to be spelled out. A complaint has to be examined by the Magistrate in the first instance on the basis of averments contained therein. If the Magistrate is satisfied that there are averments which bring the case within Section 141 he would issue the process. We have seen that merely being described as a director in a company is not sufficient to satisfy the requirement of Section 141. Even a non director can be liable under Section 141 of the Act. The averments in the complaint would also serve the purpose that the person sought to be made liable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt in P.P. Marina (supra) following the decisions in S.M.S. Pharmaceuticals Ltd. (supra) noted that Section 141 of the NI Act creates a legal fiction against the defaulting company so as to cover within its ambit all persons who have consented, connived or anyway attributed to the commission of the offence and the offence is the result of the said transaction. Thus, vicarious liability of the other accused who is not a signatory to the cheque arises on account of conduct, act or omission on the part of the person and not merely on account of holding an office or position in a company. 12. As noted above, the only averment in para 3 of the complaint is that the remaining accused persons are directly responsible for day to day affairs of the accused No.1 company. Considering the fact that the petitioner is neither the signatory nor the Managing Director of the company nor is there any averment in the complaint as to how the petitioner is responsible and Incharge of the day to day affairs and conduct of the company, nor does the complaint attribute any conduct, act or omission on the part of the petitioner which would be sufficient to hold him vicariously liable for the act of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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