TMI Blog2023 (7) TMI 1107X X X X Extracts X X X X X X X X Extracts X X X X ..... aul ) For the Petitioner : Mr. Jibantaraj Dan Roy , Mr. Nishant Choudhary For the Opposite Parties : None ORDER Shampa Dutt ( Paul ) , J. 1. The present revision has been preferred praying for quashing of the complaint under Section 138/141 of the Negotiable Instrument Act, 1881 (as amended up to date) registered as Case No. C.S No. 93322 of 2018 pending before the court of the learned Chief Metropolitan Magistrate at Calcutta. 2. The petitioner's case is that the petitioner is neither the Director nor the signatory of the accused company and it is well settled law by the Hon'ble Supreme Court that complaint under Section 138 read with Section 141 of the Negotiable Instrument Act can only be initiated against the Director of the Company and as such, there is no criminality involved on the part of the petitioner. If the complaint under Section 138/141 of N.I. Act before the learned Metropolitan Magistrate, Kolkata is allowed to proceed it will amount to gross abuse of the process of Court/law. 3. It is alleged that the post dated cheque drawn at State Bank of India, Mandi, Gobindgarh, District- Fatehgarh Sahib, Punjab bearing No.561491 dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her required authorities as provided under the provisions of the Act. Represent before several regulators and other authorities under the Act connected with the discharge of duties under the Act. Assist the company board in the conduct of the company affairs. Advice and assist the board in complying with the corporate governance requirements, ensuring good corporate governance and best practices. Discharge such other duties as specified under the Act or rules. 12. The Supreme Court in Sunita Palita vs. M/s. Panchami Stone Quarry, in Criminal Appeal No. of 2022 (arising out of SLP (Crl.) No. 10396 of 2019), on 1 August, 2022, held:- 23. In S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla, (2005) 8 SCC 89, cited by Mr. Luthra, this Court held: 10. While analysing Section 141 of the Act, it will be seen that it operates in cases where an offence under Section 138 is committed by a company. The key words which occur in the section are every person . These are general words and take every person connected with a company within their sweep. Therefore, these words have been rightly qualified by use of the words: Who, at the time the offence was comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent in the complaint that he is in charge of, and is responsible to the company, for the conduct of the business of the company. It is sufficient if an averment is made that the accused was the Managing Director or Joint Managing Director at the relevant time. This is because the prefix Managing to the word Director makes it clear that they 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 companywho 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 [asdefined in Section 2(24) of the Companies Act] or a person referred to in clauses (e) and (f) of Section 5 of the Companies Act, an averment in the complaint that he was in charge of, and was r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore, not sufficient to make a bald cursory statement in a complaint that the Director (arrayed as an accused) is in charge of and responsible to the company for the conduct of the business of the company without anything more as to the role of the Director. But the complaint should spell out as to how and in what manner Respondent 1 was in charge of or was responsible to the accused Company for the conduct of its business. This is in consonance with strict interpretation of penal statutes, especially, where such statutes create vicarious liability. 14. A company may have a number of Directors and to make any or all the Directors as accused in a complaint merely on the basis of a statement that they are in charge of and responsible for the conduct of the business of the company without anything more is not a sufficient or adequate fulfilment of the requirements under Section 141. *** 18. In Girdhari Lal Gupta v. D.H. Mehta [Girdhari Lal Gupta v. D.H. Mehta, (1971) 3 SCC 189 : 1971 SCC (Cri) 279 : AIR 1971 SC 2162] , this Court observed that a person in charge of a business means that the person should be in overall control of the day-to-day business of the Comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that such Director was in charge of and responsible for conduct of the business of the Company or the Company, unless such Director is the designated Managing Director or Joint Managing Director who would obviously be responsible for the company and/or its business and affairs. 46. As held by this Court in National Small Industries Corporation Ltd. v. Harmeet Singh Paintal, (2010) 3 SCC 330, quoted with approval in the subsequent decision of this Court in Pooja Ravinder Devidasani v. State of Maharashtra and Anr. (supra) the impleadment of all Directors of an Accused Company on the basis of a statement that they are in charge of and responsible for the conduct of the business of the company, without anything more, does not fulfil the requirements of Section 141 of the NI Act. 13. Thus, the petitioner a company secretary not being the signatory to the cheque, was also not involved in running the day to day affairs of the Company. The petitioner was only the company Secretary. The job was to assist the persons involved in running the day to day affairs of the Company. 14. Thus, the petitioner is not liable in the present case, there also being no specific averments agai ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
