TaxTMI 
TaxTMI 
2018 (10) TMI 408
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....em. Accordingly, the non-service on the respondents no. 2 and 3 is ignored. The necessary facts for the disposal of the present petition in short are that the respondent No.1 has filed a criminal complaint under Section 138 of the NI Act against the applicants as well as the respondents No.2 and 3. By referring to the complaint filed by the respondent No.1, it is submitted by the counsel for the applicants that except mentioning that the applicants are the ''Karta Dharta'' and authorized signatories of the respondent No.2, no other allegation has been made against the applicants to the effect that they are the persons, who are responsible for the day-to-day business of the respondent No.1. By referring to the judgments of Supreme Court in the cases of K. K. Ahuja vs. V. K. Vora & Another reported in (2009) 10 SCC 48, Sabitha Ramamurthy & Another vs. R.B.S. Channabasavaradhya reported in (2006) 10 SCC 581, Jugesh Sehgal vs. Shamsher Singh Gogi, reported in (2009) 14 SCC 683 and the judgment passed by the Supreme Court in the case of Ajay Agrawal vs. M/s. Integrated Finance Company Limited in Criminal Appeal Nos. 586- 594 of 2018 [Arising out of SLP (Crl.) Nos.7122....
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....by companies.-(1) If the person committing an offence under Section 138 is a company, every person who, at the time the offence was committed, was in charge of, and 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 subsection shall render any person liable to punishment if he proves that the offence was committed without his knowledge, or that he had exercised all due diligence to prevent the commission of such offence: 2"Provided further that where a person is nominated as a Director of a company by virtue of his holding any office or employment in the Central Government or State Government or a financial corporation owned or controlled by the Central Government or the State Government, as the case may be, he shall not be liable for prosecution under this chapter." (2) Notwithstanding anything contained in subsection (1), where any offence under this Act has been committed by a company and it is proved that the offence has been committed with the cons....
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....n, Managing Director, Executive Director and wholetime Director and authorised signatories of Accused 1, respectively. As such being the Chairman, Managing Director, Executive Director and whole-time Director were and are the persons responsible and in charge of day-to-day business of Accused 1 viz. when the offence was committed. Accused 6 and 7 being signatories of the cheque are aware of the transaction and therefore Accused 2 to 7 are liable to be prosecuted jointly or severally for having consented and/or connived in the commission of present offence in their capacity as the Chairman, Managing Director, Executive Director, whole-time Director and authorised signatories of Accused 1, further the offence is attributable to Accused 2 to 7 on account of their neglect to ensure and make adequate arrangements to honour the cheque issued by Accused 1 and further on account of the neglect of Accused 1 to 7 to comply with the requisition made in the demand notice issued under the provisions of Section 138(c) of the Negotiable Instruments Act within the stipulated period. The accused are therefore liable to be proceeded. * * * 4. I say that Accused 1 through A....
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.... the NI Act, are really responsible for the day-to-day business of the Company or not, cannot be adjudicated by the Trial Court at the time of taking cognizance. The basic averment is necessary and there is no reason to disbelieve the basic averment to the effect that the persons who have been arrayed as accused, are responsible/ in charge of the day-to-day business of the Company. Whether a person is responsible for the day-today business of the Company or not, is a disputed question, which has to be decided by the trial Court only after considering the evidence led by the parties in this regard. It is submitted by the counsel for the applicants that in the case of Ajay Agrawal (supra), the Supreme Court has quashed the proceedings against the appellant therein on the ground that he had already submitted his resignation prior to issuance of the cheque in question and the said aspect of resignation was already communicated to the Registrar of Companies much prior to presentation of the cheque. In the present case, the applicant has relied upon the Memorandum of Association to show that the applicants are not the Directors of the Company. Whether the list of Directors in the Memo....