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TMI Blog2022 (6) TMI 1032X X X X Extracts X X X X X X X X Extracts X X X X ..... rack Court, Poonamallee, has taken the complaint on its file as S.T.C. No. 31 of 2019. The accused 1 to 5 in that complaint are before this Court by way of petition under Section 482 of Cr.P.C., to quash the said complaint. 2. The gist of the complaint is that, the complainant is engaged in carrying on interior business and some of the prestigious firms in Chennai are his clients. The 1st petitioner company approached him for carrying on interiors for their outlets in OMR, ECR, Anna Nagar and distribution center at Kossapur. On the request of the accused persons on behalf of the 1st accused Company, he accepted their request and completed the projects as per the schedule. For the purpose of carrying out the projects and to negotiate the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d with endorsement "Payments stopped by the drawer". After causing statutory notice, complaint was filed against the 1st Petitioner Company, its Managing Director and Directors. 5. In the complaint, it is alleged that the 3rd accused is the signatory of the cheques and accused 2, 4 & 5 are directly involved in the day-to-day affairs of the 1st petitioner/Company for the conduct of the business of the 1st accused/Company. They all took active part in dealing with the complainant therefore each one of them are responsible for the conduct of the Company and liable to prosecute under Section 138 of Negotiable Instruments Act, 1881. 6. The Learned Senior Counsel appearing for the petitioners would submit that, the cheques were issued only as s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were given with specific request to be presented on the date on which it bears to discharge the debt of Rs. 51,40,280/-. All the Directors including the signatory of the cheques were monitoring the work and giving instructions for the execution of the work. The said overt act of the accused persons been specifically mentioned in the complaint itself. Therefore, by inventing an imaginary clause that, final settlement is payable only on receipt of the auditor's report and the cheques were issued only as security is an afterthought and not based on any records or terms of contract. Therefore, the petitioners herein are bound to face the trial and discharge the burden of proof. 9. The Learned Counsel appearing for the respondent also subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ning the criminal liability, there is no presumption that every Director knows about the transaction. (ii) Section 141 does not make all the Directors liable for the offence. The criminal liability can be fastened only on those who, at the time of the commission of the offence, were in charge of and were responsible for the conduct of the business of the company. (iii) Vicarious liability can be inferred against a company registered or incorporated under the Companies Act, 1956 only if the requisite statements, which are required to be averred in the complaint/petition, are made so as to make the accused therein vicariously liable for offence committed by the company along with averments in the petition containing that the accused were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . But, there should be necessary averments in the complaint as to how and in what manner, the accused was guilty of consent, connivance or negligence. 13. In Gunmala Sales Private Limited and another vs. Navkar Promoters Private Limited and others reported in 2015(1) SCC 104, the Hon'ble Supreme Court has observed as below:- "7.2. So far as the decisions cited by the respondents are concerned, all these decisions purported to follow the law laid down in SMS Pharma (1) [S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla, (2005) 8 SCC 89, which does not lay down any general proposition of law that the specific role of a Director sought to be arrayed as an accused has to be elaborated in the complaint itself. 7.3. The doctrine of "indoor man ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thin the scheduled time. 15. While so, it is contended by some of the accused persons that, they are Non-Executive Directors and not involved in day-to-day affairs of the Company. This is a fact disputed and has to be proved in the course of trial and cannot be decided summarily. 16. The petitioners admit that the cheque was drawn by them and handed over to the respondent-complainant. However, they contend that the cheques were issued only as security for the balance amount, which is liable to pay after certification. If that is so, the petitioners ought not to have given those cheques with specific dates and amounts without certification. After presentation of the cheques and institution of the complaint, the petitioners herein by rely u ..... X X X X Extracts X X X X X X X X Extracts X X X X
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