TaxTMI 
TaxTMI 
2019 (6) TMI 574
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....el for the petitioners would submit that the petitioners are the accused in EOCC.No.570 of 2017. The first petitioner was incorporated under the Companies Act in the name and style of Madras Flying Club Ltd. The petitioners 2 to 6 are the Directors of the first petitioner Company and are serving as an honorary employee without getting any honorarium or salary or profit and the activities of the company was purely non profit and non commercial. While being so, one Mr.Rajkumar was appointed as Secretary and thereafter he was terminated for the allegation that he involved in various criminal activities. His appointment was not ratified by the General Committee of the first petitioner Company and he had stolen the Minutes Book, Committee member....
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....He would further submit that whether the petitioners are responsible for the non compliance, there is absolutely no specific averments in the complaint that the petitioners 2 to 6 are the officers who are in default within the meaning of Section 2 (60)(vi) of the Company Act, 2013. There is absolutely no averment to that extent. Further he submitted that no specific averment in the complaint that registrar under proviso of Section 260(3) of the Companies Act had recorded his reasons for issuing notice to the company and it is mandatory in nature whereas the complaint was silent whether such reasons were recorded before issuing such notice to the petitioners. He further submitted that petitioners sent information and explanation to the respo....
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....e to be punished under Section 206(1) (3) r/w 206(7) of the Companies Act. Further submitted that there are specific averments as against the petitioners in the complaint and as such all are equally liable to be punished under the Companies Act and therefore prayed for dismissal of this quash petition. 4. Heard, Mr.S.Jeyaram, the learned counsel for the petitioners and Mr.B.Ramesh, Special Public Prosecutor for the first respondent. 5. The petitioners are A1 to A6. The first petitioner is the company and the petitioners 2 to 6 are directors of the company. It is seen from the entire complaint there is no specific averments and allegations as against the company as well as other directors. The allegations are also very vague and not cl....
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....or a Joint Managing Director, it is not necessary to make an averment in the complaint that he is in charge of, and is responsible to the company, for the conduct of the business of the company. It is sufficient if an averment is made that the accused was the Managing Director or Joint Managing Director at the relevant time. This is because the prefix "Managing" to the word "Director" makes it clear that they were in charge of and are responsible to the company, for the conduct of the business of the company. (ii) In the case of a Director or an officer of the company who signed the cheque on behalf of the company, there is no need to make a specific averment that he was in charge of and was responsible to the company, for the cond....
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....nt, it is not proper to subject all and sundry to be impleaded as accused in a complaint against a company, even when the requirements of section 138 read with section 141 of the Act are not fulfilled. 21. The legal position which emerges from a series of judgments is clear and consistent that it is imperative to specifically aver in the complaint that the accused was in charge of and was responsible for the conduct of business of the company. Unless clear averments are specifically incorporated in the complaint, the respondent cannot be compelled to face the rigmarole of a criminal trial." 7. Though the dictum laid down under the Negotiable Instruments Act, the legal position is clear that there should be specific averments in ....