2019 (12) TMI 1132

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.... the judgment and order dated 11.09.2019 passed by the learned MM, Patiala House Courts, New Delhi in Complaint Case No.41370/2016 to the extent the Trial Court had acquitted respondent no. 2 (Mr. Sanjeev Gupta) of the offence under Section 138 of the Negotiable Instruments Act, 1881 (hereafter 'the NI Act'). 5. It is the petitioner's case that he had entered into an agreement for the purchase of a flat in a real estate project by the name of 'Leela Apartment' located in Vaishali, Delhi. He had paid a sum of Rs.5 lakhs as a token amount in favour of respondent no.1 company, in cash. The balance consideration of Rs.95 lakhs was to be paid on or before 03.09.2013. In compliance with the said terms, the petitioner paid a sum of Rs.95 lakhs ....

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.... no.1 issued a letter dated 12.06.2014, confirming its liability to pay the remaining amount of Rs.85 lakhs and handed over a fresh cheque (cheque bearing no.662701) for the aforesaid amount. The said cheque was presented on 04.07.2014 and the same was again dishonoured by the bankers of respondent no.1 company. 8. Thereafter, the petitioner issued a legal notice under Section 138 read with Section 141 of the NI Act demanding a payment of Rs.85 lakhs along with interest at the rate of 15% per annum. 9. It is important to note that the said legal notice was addressed to the respondents therein, namely, M/s Black Gravel Infracon Pvt. Ltd. (respondent no.1 company), Mr Sanjeev Gupta and Mr Manoj Gupta. Mr Manoj Gupta was described as the....

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....is contention that even though respondent no.2 was not a director of respondent no.1 company he was, nonetheless, liable under Section 141 of the NI Act since he was the person with whom the petitioner was dealing with regard to the booking of the flat in question. 15. Section 141 of the NI Act is set out below:- "141 Offences 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 no....

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....incorporated under the Companies Act, 1956) is dishonoured, in addition to the company, the following persons are deemed to be guilty of the offence and shall be liable to be proceeded against and punished: (i) 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; (ii) any Director, manager, secretary or other officer of the company with whose consent and connivance, the offence under Section 138 has been committed; and (iii) any Director, manager, secretary or other officer of the company whose negligence resulted in the offence under Section 138 of the Act, being committed by the company. While liabilit....

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.... that the petitioner had dealt with respondent no.2 for booking of the flat in question and for refund of the amounts invested, the same does not establish that respondent no.2 was either in-charge of the affairs of respondent no.1 company, or was responsible for conduct of the said business. 19. Sub Section (1) of Section 141 of the NI Act imputes vicarious liability in respect of offences committed by a company. Such liability is imputed only on the persons who are otherwise responsible for conduct of the business of the company. Since in the present case, the evidence to establish that respondent no.2 was otherwise in-charge of the affairs responsible for the conduct of the business of the company is lacking; this Court finds no infir....