TMI Blog2024 (2) TMI 868X X X X Extracts X X X X X X X X Extracts X X X X ..... subjected to criminal proceedings, specific averments have to be in a complaint. It is also imperative to establish that a person who is sought to be made criminally liable should, at the time of the commission of the offence, be in charge of and responsible for the conduct of the business of the company, to initiate proceedings under Section 141 of the Negotiable Instruments Act, 1881 The petitioner herein is averred to only be an agent of the accused no. 1 firm. There is not even an assertion in the complaint that the petitioner was in any manner in charge of or was responsible to the accused no. 2 for the conduct of its business - Applying the above test to the facts of the present case, therefore, the offence under Section 138 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Complaint no. 6830/2017 titled ALPS Industries Ltd. v. Laycana Ors. pending adjudication before the Court of the learned Metropolitan Magistrate (NI Act)-2, Rouse Avenue Court Complex, New Delhi District, New Delhi (hereinafter referred to as MM ). 3. The above complaints have been filed by the respondent no. 1 alleging that M/s Laycana (accused no. 1) is a proprietary firm of the accused no. 2 and 3 that is Sh. Rupal Shah and Mr. K. Mahendra and Company. 4. The petitioner herein has been arrayed as accused no. 4 in the above-referred complaints describing him as an agent . 5. It is further alleged that the accused no. 1 used to purchase the textile products from the respondent no. 1 herein and in consideration of the same ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e been summoned on the basis of the averments made in the complaints. 9. The learned counsel for the petitioner further places reliance on the judgement of the Supreme Court in Siby Thomas v. Somany Ceramics Ltd., (2024) 1 SCC 348. 10. The learned counsel for the respondent, on the other hand, submits that the petitioner was an agent of accused no. 1, therefore, he has been rightly arrayed as an accused in the complaint. He further submits that, in case, this Court comes to the conclusion that the petitioner has been wrongly arrayed as an accused in the complaint, liberty be granted to the respondent to amend the list of witnesses filed by the respondent before the learned Trial Court and summon the petitioner as a witness. 11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is not required to aver that the accused concerned is a person who was in charge of and responsible for the conduct of the business of the company at the relevant time when the offence was committed. In para 53 of S.P. Mani case [S.P. Mani Mohan Dairy v. Snehalatha Elangovan, (2023) 10 SCC 685] it was held thus : (SCC p. 715) 53. In the case on hand, we find clear and specific averments not only in the complaint but also in the statutory notice issued to the respondent. It is thereafter that in the decision in S.P. Mani case [S.P. Mani Mohan Dairy v. Snehalatha Elangovan, (2023) 10 SCC 685] in para 58.1it was held that the primary responsibility of the complainant is to make specific averments in the complaint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble to the company for the conduct of the business of the company, as well as the company alone shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished. 15. As noted above, the petitioner herein is averred to only be an agent of the accused no. 1 firm. There is not even an assertion in the complaint that the petitioner was in any manner in charge of or was responsible to the accused no. 2 for the conduct of its business. 16. Applying the above test to the facts of the present case, in my view, therefore, the offence under Section 138 of the Act is not made out against the petitioner. The prejudice caused to the petitioner is evident from the fact that though the complaint has been filed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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