TaxTMI 
TaxTMI 
2010 (7) TMI 283
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....h you in all such quality issues about our Mortem product range. Our quality control is handled by Mr. Rajeev Khurana, Regional Technical Director." 4. It is submitted that section 33 of the Insecticides Act, 1968 provides that: "33. Offences by companies.-(1) Whenever an offence under this Act has been committed by a company, every person who at the time of the offence was committed was in charge of, or was responsible to the company 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 against and punished accordingly : Provided that nothing contained in this sub-section shall render any such person liable to any punishment under this Act if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence. (2) Notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect, on the part of, any director, manager, secretar....
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....d by the company. The respondent submitted that in the absence of such specific averments, the learned Magistrate was not justified in issuing the summoning order against the respondent. It was also submitted that the provision of vicarious liability is an exception to the normal rule of criminal jurisprudence and no one is to be held criminally liable for an act of another. Such exception is carved out by specific insertion in statutes extending criminal liability to others. 9. According to the respondent, section 33(1) has three tests namely : (a) a person being in charge, (b) responsible for the day to day affairs of the company; and (c) at the time when the offence was committed. 10. The respondent further submitted that mere naming a person in the title of a complaint even as a partner of a firm (although under the Partnership Act, 1932 each partner is liable under section 25), does not satisfy the test of the deeming provision contained in section 141(1) of the Negotiable Instruments Act, 1881 which is pari materia to section 33(1) of the Insecticides Act, 1968, as held by this court in Monaben Ketanbhai Shah v. State of Gujarat [2004] 7 SCC 15^1. In the said case, this....
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....ible to the company for the conduct of its business. Simply because a person is a director of the company it does not necessarily mean that he fulfils both the above requirements so as to make him liable. Conversely, without being a director a person can be in charge of and responsible to the company for the conduct of its business. From the complaint in question we, however, find that except a bald statement that the respondents were directors of the manufacturers, there is no other allegation to indicate, even prima facie, that they were in charge of the company and also responsible to the company for the conduct of its business. 14. K.P.G. Nair v. Jindal Menthol India Ltd. [2001] 10 SCC 218^1 was a case of this court under the Negotiable Instruments Act, 1881, and it was found that the allegations in the complaint did not either in express words or with reference to the allegations contained therein make out a case that at the time of commission of the offence the appellant was in charge of and was responsible to the company for the conduct of its business. It was held that the requirements of section 141 of the Negotiable Instruments Act, 1881, were not met and the complaint....
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.... statement of witness also did not specifically allege that the appellants were in charge of the business of the company. This Court held that requirement of section 141 of the Negotiable Instruments Act, 1881 was not complied with and the complaint was liable to be quashed. 17. In K.K. Ahuja v. V.K. Vora [2009] 10 SCC 48^1, this court observed that the averment in a complaint that an accused is a director and that he is in charge of and is responsible to the company for the conduct of the business of the company, duly affirmed in the sworn statement, may be sufficient for the purpose of issuing summons to him. But if the accused is not one of the persons who falls under the category of "persons who are responsible to the company for the conduct of the business of the company", then merely by stating that "he was in charge of the business of the company" or by stating that "he was in charge of the day-to-day management of the company" or by stating that he was in charge of, and was responsible to the company for the conduct of the business of the company, he cannot be made vicariously liable under section 141(1) of the Act. 18. The ratio of all these cases is that the complai....