TaxTMI 
TaxTMI 
2022 (2) TMI 950
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....he India Ahead News Private Ltd. which is engaged in the business of running a TV news channel. ii. It is alleged in the complaint that the petitioner herein and the accused No.2 - Goutham Mootha, who is the son of the petitioner herein, are the directors of India Ahead News Pvt. Ltd. and they are responsible for the day to day affairs of the company and they are running the TV channel and actively controlling all the operations of the company. iii. It is stated in the complaint that the complainant was taken in service by the respondent No.1 at a fixed salary of Rs. 10,00,000/- per month plus GST less TDS (to be deposited by the company under the Income Tax Act) along with monthly expenditure and reimbursement of Rs. 1,50,000/- per month. It is stated that a stake of 10 per cent was also assured to the complainant herein. iv. It is stated that in the year 2019, the salaries of staff including the complainant started getting delayed and even the statutory obligations like the PF, ESI etc. were not being fulfilled by the company. It is stated that since the dues and the arrears of salary were mounting up, at the request of Goutham Mootha (son of the petiti....
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....spite several sittings, no settlement could be arrived at. 4. Mr. Neeraj Malhotra, learned Senior Advocate for the petitioner, contends that the petitioner is over 80 years of age having several physical ailments and is no longer looking into day-to-day affairs of the company. He contends that the complainant/respondent No.2 being the ex-CFO of the company was well aware of the affairs of the company and he knew who was responsible for the conduct of the business of the company. He states that the averments in the complaint do not reflect the role of each of the directors in the company and summons could not have been issued to the Petitioner. The learned Senior Counsel for the petitioner relies on the following judgments:- i. Ashoke Mal Bafna v. Upper India Steel Mfg. & Engg. Co. Ltd., (2018) 14 SCC 202. ii. Central bank of India v. Asian Global Ltd. & Ors., (2010) 11 SCC 203. iii. ECL Finance Ltd. v. Sukhmani Bedi & Ors., (2018) OnLine Del 11213. iv. N K Wahi v. Shekhar Singh & Ors., (2007) 9 SCC 481. v. NSIC v. Harmeet Singh Paintal & Anr., (2010) 3 SCC 330. vi. Gunmala Sales (P) Ltd. v. Anu Mehta, (2015) 1 SCC 103. ....
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....arious liability on the part of a person must be pleaded and proved and not inferred. (v) If the accused is a Managing Director or a Joint Managing Director then it is not necessary to make specific averment in the complaint and by virtue of their position they are liable to be proceeded with. (vi) If the accused is a Director or an officer of a company who signed the cheques on behalf of the company then also it is not necessary to make specific averment in complaint. (vii) The person sought to be made liable should be in charge of and responsible for the conduct of the business of the company at the relevant time. This has to be averred as a fact as there is no deemed liability of a Director in such cases. (Refer Gunmala Sales Private Limited v. Anu Mehta & Ors., 2015 (1) SCC 103; National Small Industries Corpn. Ltd. v. Harmeet Singh Paintal, (2010) 3 SCC 330; S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla, (2005) 8 SCC 89; S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla, (2007) 4 SCC 70; Saroj Kumar Poddar v. State (NCT of Delhi), (2007) 3 SCC 693; N.K. Wahi v. Shekhar Singh, (2007) 9 SCC 481; N. Rangachari ....
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.... of Court. Despite the presence of basic averment, it may come to a conclusion that no case is made out against the particular Director for which there could be various reasons. 24. The issue for determination before us is whether the role of the appellants in the capacity of the Director of the defaulter company makes them vicariously liable for the activities of the defaulter Company as defined under Section 141 of the NI Act? In that perception, whether the appellant had committed the offence chargeable under Section 138 of the NI Act? 25. We are concerned in this case with Directors who are not signatories to the cheques. So far as Directors who are not the signatories to the cheques or who are not Managing Directors or Joint Managing Directors are concerned, it is clear from the conclusions drawn in the afore-stated judgment that it is necessary to aver in the complaint filed under Section 138 read with Section 141 of the NI Act that at the relevant time when the offence was committed, the Directors were in charge of and were responsible for the conduct of the business of the company. 26. This averment assumes importance because it is the basic and e....