TaxTMI 
TaxTMI 
2022 (3) TMI 926
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....o. 74 of 2021 Crl.Petn. No. 75 of 2021 Crl.Petn. No. 76 of 2021 Crl.Petn. No. 77 of 2021 Crl.Petn. No. 78 of 2021 Crl.Petn. No. 79 of 2021 Crl.Petn. No. 80 of 2021 Crl.Petn. No. 81 of 2021 Crl.Petn. No. 82 of 2021 Crl.Petn. No. 83 of 2021 Crl.Petn. No. 84 of 2021 Crl.Petn. No. 85 of 2021 Crl.Petn. No. 86 of 2021 Crl.Petn. No. 87 of 2021 Crl.Petn. No. 88 of 2021 Crl.Petn. No. 89 of 2021 Crl.Petn. No. 90 of 2021 Crl.Petn. No. 91 of 2021 Crl.Petn. No. 92 of 2021 Crl.Petn. No. 93 of 2021 Crl.Petn. No. 94 of 2021 For the Petitioner/Appellant(s) : Ms. S. Agnihotri, Adv. For the Respondent(s) : Mr. S. Jindal, Adv. (For R/1) Ms. I. Lyngwa, Adv. (For R/2 & 3) Mr. A.H. Kharwanlang, Adv. (For R/4) 1. Several criminal complaint petitions identical and similar in nature were filed before the Court of the learned Additional Deputy Commissioner (Judicial) at Shillong. The complainant in all the said complaint petitions is the respondent No. 1 herein. Again, in all the complaint petitions the same set of accused persons were arrayed viz; i) M/s Twelve Baskets (Registered Firm); ii) Mr. Sachhidanand Kanchan; iii) Mr. Mark Alexander Davidson; and iv) Mrs. Sarita Harish Kanchan. 2. The co....
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....the petitioner is that Section 138 of the N.I. Act is not applicable as no demand was made from the petitioner in writing in accordance with the proviso to Section 138, the notice issued by the respondent No. 1 being addressed only to the respondent No. 2 Firm. 10. Again, it is contended that the respondent No. 1 in her/him complaint petition has only made a bald averment, but no material averment was made that the petitioner was a signatory of the said cheques. 11. It is also cited that the allegations at paragraphs 9 and 10 of the complaint petition that the petitioner along with respondents No. 3 and 4 as accused persons No. 2 to 4 were incharge and responsible for the conduct of the business of the firm was also vague as no specific period as to when the offence was committed and further, that no specific designation was attributed to the petitioner to attract the provisions of Section 141 (2) N.I. Act. Therefore, no vicarious liability can be fastened upon the petitioner. 12. In support of this contention, the learned counsel for the petitioner has cited the following cases: - i) Pooja Ravinder Devidasani v. State of Maharashtra & Anr: (2014) 16 SCC 1, paragraphs 15, 17, ....
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....18. Since the allegations made in the complaints do not make out a prima facie case against the petitioner, therefore resort to Section 482 Cr.P.C. is justified and the relief sought for may be allowed by this Court, it is further submitted. The case of Bhajan Lal (supra) at paragraph 102 was cited in this regard to say that in that case, the Hon'ble Supreme Court has culled out non-exhaustive guidelines for the exercise of the inherent powers of the High Court under Section 482 Cr.P.C. and not merely only in the case of matters arising out of Chapter XIV of the said Code. 19. Again, it is submitted that from the evaluation of the materials and documents on record, including the complaint and the Deed of Retirement, it is apparent that no prima facie case is made out against the petitioner herein, since he was not a signatory to the said cheques which were allegedly dishonoured and was also not in charge of the affairs of the said partnership firm at the material time. 20. The respondent No. 1 has failed to make any material averment under Section 141 of the N.I. Act that the petitioner herein was in-charge of and was responsible to the respondent No. 2 Firm at the time the alleg....
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....s. Meenakshi Sathih v. M/s Southern Petrochemical Industries Corporation: (2008) 1 MWN (Cri) DCC 134 at paragraphs 16 and 17 was relied upon in this respect. 23. Here too, the learned counsel for the petitioner has made a prayer that the related petitions be allowed and all proceedings arising out of the complaints be quashed. 24. Per contra, Mr. S. Jindal, learned counsel for the respondent No.1 has submitted that reply will be given generally to the common points of contention raised by the petitioner in Crl.Petns. No. 35 to 56 of 2021 and by the petitioner in Crl.Petns. No. 74 to 94 of 2021 and reply will also be directed towards the specific contention of the individual petitioner in the two sets of petitions mentioned above. 25. On reliance by the petitioners in the case of Bhajan Lal (supra) indicating that this Court can rely on the ratio of the said judgment of the Hon'ble Supreme Court, particularly paragraph 102 and the guidelines issued therein, Mr. Jindal has submitted that the import of paragraph 102 is to apply only to cases arising out of police complaints under chapter XIV of the Cr.P.C, whereas private complaints which is the subject matter of the present procee....
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....nduct of the business of the firm and as such, they are liable to be proceeded against and punished accordingly. Even though the complaint petition does not contain the words "at the time the offence was committed" however, the words "were in charge of" would only mean and refer to the time the offence was committed. The reliance of the petitioners in the case of S.M.S. Pharmaceuticals Ltd (supra) to contend that the exact same words that have been used by the Hon'ble Supreme Court in the case should also have been used in the complaint petition, is nothing, but an adoption of an unnecessary pedantic approach, which could be answered by reference to the case of Commissioner of Income Tax v. Sun Engineering Works (P) Ltd: (1992) 4 SCC 363 at paragraph 39 wherein it was held that:- "39. .... It is not proper to regard a word, a clause or a sentence occurring in a judgment of the Supreme Court, divorced from its context, as containing a full exposition of the law on a question when the question did not even fall to be answered in the judgment." 29. Again, the case of K. Pannir Selvam v. MMTC Ltd: 2000 Cri. L.J. 1002 (AP) at paragraph 18 was also referred to by the learned counsel f....
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....ovision exist or not is again a matter for adjudication during trial. Similarly, whether the allegations contained are sufficient to attract culpability is a matter for adjudication at the trial." 31. The petitioners have also asserted that no offence is made out against them under any of the provisions of the IPC as it does not provide for vicarious liability. The respondent No. 1, though conceding that under the Indian Penal Code (IPC) there is no provision for fastening of vicarious liability, however under the N.I. Act, Section 141 thus provides for it by stating that any offence which may have been committed by a company, every person or director who was in charge of and responsible for the affairs of the company at the relevant time would also be deemed to be guilty of the offence. The case of Maksud Saiyed (supra) paragraph 15 was cited by the learned counsel for the respondent No. 1 to prove this point. 32. Though the authority cited vide the case of Gian Singh v. State of Punjab: (2012) 10 SCC 303, wherein the inherent power of the High Court under Section 482 Cr.P.C to secure the ends of justice or to prevent abuse of the process of the Court, for which proceedings in a....
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....ns made by the learned counsels for the rival parties and what can be understood is that a series of identical complaints involving the parties herein have been preferred by the respondent No. 1/Complainant basically seeking relief on account of a number of cheques purportedly issued and drawn up by the respondent No. 2/Firm in favour of the respondent No. 1 and which cheques were dishonoured. Hence, a complaint under Section 138 of the Negotiable Instruments Act, 1881 read with Sections 141 and 142 of the same Act, as well as other penal offences under Sections 420, 418, 417, 403, 406 and 409 of the Indian Penal Code was filed before the Additional Deputy Commissioner (Judicial) at Shillong. 37. Before proceeding further a look at Section 482 Cr.P.C would be necessary to come to the see whether the petitioners herein are entitled to approach this Court for relief under the aforesaid provision of law. 38. Section 482 Cr.P.C reads as follows: "482. Saving of inherent powers of High Court. - Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to preven....
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.... of which has been annexed with the complaint. On perusal of the said Partnership Deed, it is noticed that there are essentially three partners, two of whom are Mr. Sachhidanand Kanchan and Mr. Mark Alexander Davidson who are parties in these proceedings. Interestingly, it is seen that another partner of the firm, was not impleaded in the complaint petition. Nowhere, does the name of Smti Sarita Harish Kanchan appears either as a partner or an employee or even an agent or manager of the said partnership firm. 43. In the case of K.K. Ahuja (supra), relied upon by the petitioner at paragraph 9, the Hon'ble Supreme Court also taking note of the case of S.M.S. Pharmaceuticals Ltd. (supra) has held as under:- "9. A three-Judge Bench of this Court considered the scope of Section 141 of the Act in SMS Pharma (I) and held that it is necessary to specifically aver in a complaint under Sections 138 and 141 of the Act, that at the time when the offence was committed, the person accused was in charge of, and responsible for the conduct of business of the company and that in the absence of such averment, Section 141 cannot be invoked. This Court held: (SCC pp. 98-99 & 102-03, paras 10 & 18) ....
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....ng a person liable under the said provision. That the respondent falls within the parameters of Section 141 has to be spelled out. A complaint has to be examined by the Magistrate in the first instance on the basis of averments contained therein. If the Magistrate is satisfied that there are averments which bring the case within Section 141, he would issue the process. We have seen that merely being described as a Director in a company is not sufficient to satisfy the requirement of Section 141. Even a non-Director can be liable under Section 141 of the Act. The averments in the complaint would also serve the purpose that the person sought to be made liable would know what is the case which is alleged against him. This will enable him to meet the case at the trial." (emphasis supplied) 44. To fasten a liability under Section 141 of the N.I. Act, a clear case should be spelled out in the complaint against the person sought to be made liable is what the Hon'ble Supreme Court has held in the case of S.M.S. Pharmaceuticals Ltd. (supra). A bald and vague averment made in the complaint would not suffice to compel a person to subject him or herself to criminal prosecution particularly, ....
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.... cheque, he must in order to persuade the High Court to quash the process either furnish some sterling incontrovertible material or acceptable circumstances to substantiate his contention. He must make out a case that making him stand the trial would be an abuse of the process of court. He cannot get the complaint quashed merely on the ground that apart from the basic averment no particulars are given in the complaint about his role, because ordinarily the basic averment would be sufficient to send him to trial and it could be argued that his further role could be brought out in the trial. Quashing of a complaint is a serious matter. Complaint cannot be quashed for the asking. For quashing of a complaint it must be shown that no offence is made out at all against the Director." 46. As pointed out, the averments made at paragraphs 8 & 9 of the complaint petition, especially as regard the role of the petitioner (accused No. 4) who is neither a partner or anywhere involved with the affairs of the said Partnership Firm are indeed very general and not specific. In the case of Awadh Kishore Gupta (supra) it was held that ".....the Court has to only prima facie be satisfied about existen....
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.... partner in the said Firm and also even if the so called Retirement Deed is not taken into account, that is, that the legal provisions of Section 72 of the Partnership Act was not complied with, as far as the issue of notice is concerned, yet the fact remains that his role in the partnership firm has not been specifically spelt out and saying that he was also incharge of and responsible for the affairs of the said Firm is indeed only a bald averment. As per the authority cited above in the case of S.M.S. Pharmaceuticals Ltd (supra) at paragraph 10, it has been held that "...Liability depends on the role one plays in the affairs of a company and not on designation or status..." this means that a definite averment should be made out in the complaint against a person sought to be made liable and again, it is said that the mere fact of being described as a Director in a company is not sufficient to satisfy the requirement of Section 141. 50. The case of K. Pannir Selvam (supra) as well as the case of S.V. Muzumdar (supra) duly taken note of herein placed in juxtaposition with the case of K. K. Ahuja (supra) and S.M.S. Pharmaceuticals Ltd (supra) would led one to understand that even f....