TMI Blog2007 (10) TMI 719X X X X Extracts X X X X X X X X Extracts X X X X ..... pany, by name, M/s. Tianjin Tianshi (India) Pvt. Ltd., having its office at Chennai. 3. The allegations in the complaint go the effect that the company is engaged in marketing of food supplement and cosmetic products and selling them through the members, appointed for the purpose. The complainant is a four star level member in the company. Both the accused asked the complainant to become a franchisee for Salem region to stock and sell their products, for which she was also promised glorious growth and induced to part with a sum of Rs. 1,53,000/- by means of demand drafts. She also fulfilled the requirements to become a franchisee, including that of arranging promises to an extent of 200 sq.ft. to stock and sell their products. However, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an abuse of process, and that the service of summons to the petitioner is alien to criminal law. 7. Admittedly, there was no petition for impleading the petitioner in the proceedings nor was there any notice from the Court before issuing summons. It appears that since the second accused did not appear before the Court on a oral enquiry with the complainant, the Judicial Magistrate No. V, Salem, issued summons to the petitioner, as if she is the accused in the case. However, learned Counsel for the respondent justifies the said attitude of the Court, while it is assailed by the petitioner. 8. The issue in question has to be decided following the well settled judicial pronouncements on the subject. 9. Ms. R. Suvithra, learned Counse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments Act, which dealt with a circumstance that if the person committed offence under Section 138 is a company, every person, who, at the time of commission of offence, was in-charge of and responsible for the conduct of the business of the company as well as the company shall be deemed to be guilty of the offence and shall be liable to be proceeded and punished accordingly. 13. The language of the Section would clearly indicate that the person should be in-charge of the affairs of the company at the time of commission of offence, however, the company is always liable for the guilt. 14. Concedingly, the petitioner was not at all in-charge of the post of General Manager at the time of alleged transaction. Merely because she held the po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y prosecution for serious offences merely because the prosecution would ultimately entail a sentence of mandatory imprisonment. The corporate bodies, such as a firm or company undertake series of activities that affect the life, liberty and property of the citizens. Large scale financial irregularities are done by various corporations. The corporate vehicle now occupies such a large portion of the industrial, commercial and sociological sectors that amenability of the corporation to a criminal law is essential to have a peaceful society with stable economy. 16. As per the ruling of the Hon'ble Supreme Court, a corporate body cannot be sentenced to imprisonment, but fine could be imposed, as it is a juristic person. In the case on han ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y is not sufficient to make the person liable under Section 141 of the Act. A Director in a company cannot be deemed to be in charge of and responsible to the company for conduct of its business. The requirement of Section 141 is that 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. (c) The answer to question (c) has to be in affirmative. The question notes that the Managing Director or Joint Managing Director would be admittedly in charge of the company and responsible to the company for conduct of its business. When that is so, holders of such positi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... supported. Once the complainant deviates from the legal liability of incorporating necessary contents in the complaint as to the role played by the accused, no cognizance could be taken and issuance of summons could not at all be recognised. Every care must be taken by the complainant in drafting or framing the complaint while any person is included in it, in his official capacity, since the concept of vicarious liability departs from the rule in criminal law. 21. It is well settled that even though it is pleaded in the complaint that a particular individual is a Director of the company, it will not clothe him of any criminal responsibility, but, there must be a specific wording to the effect that he personally persuaded the complainant ..... X X X X Extracts X X X X X X X X Extracts X X X X
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