2019 (1) TMI 1375

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....nder Section 138 of the Negotiable Instruments Act, 1881 qua certain cheques which were issued in favour of the second respondent (the complainant) against the account of M/s. Amtek Rail Car Industries Pvt. Ltd., the role of the petitioners, impleaded in the array as third and fourth accused, having been described as that of directors in the said company which has also been summoned as accused by the same order. 2. The petitioners, feeling aggrieved, have approached this court by the petition at hand under Section 482 of the Code of Criminal Procedure, 1973 (Cr.P.C.) seeking quashing of the said criminal proceedings primarily on the ground that the averments in the complaint and the documents filed therewith do not make out a case for they....

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....e petitioners are admittedly not the signatories to the said cheques. After the said cheques had been returned unpaid, the complainant had issued demand notice dated 13.02.2012 in which he had described the role of the petitioners, as indeed certain others, as "the responsible directors" of the company accused. The said demand notice was responded to by a reply dated 09.03.2012 for and on behalf of the persons shown in the array as accused including the petitioners and admittedly in the said reply the petitioners had taken the position that they were "not in anyway connected with the transactions and/or the dispute arising therefrom" and further that "they were not involved in any way with management and day to day affairs of the company". ....

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....e or less similar issues in the context of a batch of similar prosecutions for offence under Section 138 of the Negotiable Instruments Act, 1881 in decision reported as Jwala Devi Enterprises Pvt. Ltd. vs. Fadi El Jaouni, 2018 SCC Online Del 10030. While construing the penal clause under Section 138 of the N.I.Act, this court observed thus :- "6. It is clear from the plain reading of the above quoted provision and is now also well settled that the offence under Section 138 of the Negotiable Instruments Act does not stand constituted merely upon dishonor of a cheque. The dishonor of a cheque which had been issued by the person (who is sought to be prosecuted) in favour of the complainant must be followed by a notice of demand within the sti....

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....e company and, therefore, can be proceeded against in terms of Section 141; (iv). Merely because a person is a director of the company is not sufficient to make him liable under Section 141, there being no deeming that by holding such position he is in charge of, or responsible for the conduct of the business of, the company within the meaning of Section 141; (v). It is necessary for the complainant to specifically aver in the complaint that at the time the offence was committed, the person sought to be prosecuted was in charge of, or responsible for the conduct of the business of, the company in terms of Section 141, there being no need for further particulars to be given in the complaint about his role, this being subject to proof at ....