TaxTMI 
TaxTMI 
2020 (12) TMI 999
X X X X Extracts X X X X
X X X X Extracts X X X X
.... printed in the cause list, no representation for him. Hence, this Court by order dated 31.08.2020, appointed Mr.A.Ashwin Kumar as Legal Aid Counsel for the respondent. 3.The gist of the case is that A1 company viz., M/s.Nitsun Garments Private Limited, Tirupur was indulging in the business of manufacturing garments and exporting and A2 and A3/petitioner are the Managing Director and Director respectively of the 1st accused company. A1 company had engaged the respondent company viz., M/s.MIQ Logistics India Private Limited to transport garments packed in cartoons boxes to Newyork via air and towards Air Freight Charges for two shipments. A2 on behalf of the A1 company had issued two posted cheques bearing Nos.468445 & 468444, dated 18.10....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s on the part of the respondent to make specific allegations for making a Director vicariously liable for the acts of the company, but in this case, the complaint of the respondent does not whisper any such allegation against the petitioner. 7.The learned counsel for the petitioner further submitted that mere bald statement that the petitioner is incharge of responsible to A1 company, is not sufficient to maintain prosecution. Further, the necessary requirements of the complaint which need to be indicated in the complaint are how, in what manner, the role, description and specific allegation as to the part played by a person before she could be made as accused. In this case, there is no description as to how the petitioner acted on behal....
X X X X Extracts X X X X
X X X X Extracts X X X X
....1st accused company viz., M/s.Nitsun Garments Private Limited, Tirupur, representing by its Managing Director/A1 and Director/A2/petitioner, in order to discharge liability, issued two cheques cheques bearing numbers 468445 & 468444, dated 18.10.2014 for Rs. 7,43,683/- and Rs. 10,40,763/- respectively drawn on Axis Bank Limited, Tirupur. 11.On 05.11.2014, when the respondent presented the cheques for collection in its Bank viz., HSBC Bank, Rajaji Salai, Chennai, the cheques were returned as 'Payment Stopped by Drawer'. Hence, the respondent sent a legal notice to the accused on 05.12.2014 within 15 days. On receipt of the notice, the accused sent a reply dated 09.01.2015, stating that the cheques were issued as security. Annoyed ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e conduct and day to day business of A1 company. Hence, the learned Judicial Magistrate No.I, Tirupur has rightly taken cognizance of the complaint, which cannot be quashed by invoking Section 482 Cr.P.C by this Court and it is a matter for trial. Thus, the points agitated by the petitioner are to be decided only during the trial. 13.In support of his contention, reliance was placed on the Judgment of the Hon'ble Supreme Court in the case of "Gunmala Sales Private Limited Versus Anu Mehta and Ors. reported in 2015 1 SCC 103". 14.This Court considered the rival submissions and perused the materials available on record. 15.It is not in dispute that the petitioner/A3 is the Director of A1 company. In order to discharge the liabili....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... in the complaint regarding the fact that the accused was a partner in charge of and was responsible to the firm for the conduct of business of the firm nor was there any allegation that the offence was made with the consent and connivance or that it was attributable to any neglect on the part of the accused. It was held that no case was made out against the accused who was a partner and the complaint was quashed. The latest in the line is the judgment of this Court in Monaben Ketanbhai Shah v. State of Gujarat [(2004) 7 SCC 15 : 2004 SCC (Cri) 1857] . It was observed as under: (SCC p. 17, para 4) "4. It is not necessary to reproduce the language of Section 141 verbatim in the complaint since the complaint is required to be read as....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f the business of the firm. These may be sleeping partners who are not required to take any part in the business of the firm; they may be ladies and others who may not know anything about the business of the firm. The primary responsibility is on the complainant to make necessary averments in the complaint so as to make the accused vicariously liable. For fastening the criminal liability, there is no presumption that every partner knows about the transaction. The obligation of the appellants to prove that at the time the offence was committed they were not in charge of and were not responsible to the firm for the conduct of the business of the firm, would arise only when first the complainant makes necessary averments in the complaint and e....