TaxTMI 
TaxTMI 
TaxTMI 
2022 (7) TMI 41
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....ned with an endorsement "fund insufficient". It is the submission of the learned Counsel for the Petitioner that there is no specific averment against the second Accused/Petitioner herein. The operations of the first Accused Company commenced in the year 2015 and was going concern. The Petitioner had approached the complainant in the year 2016 for financial assistance. The first Accused had obtained loan from the complainant. The second Accused and another stood only as guarantors to the first Accused Company. The Respondent/Complainant had requested the Petitioner/first Accused to issue blank cheques as security and ensured that the Respondent/Complainant would not present the cheques unless specific instructions are obtained from the Petitioner/First Accused. The Petitioner was repaying the loan regularly. The Respondent/Complainant had not taken into consideration the amounts which were repaid by the Petitioner/First Accused. The Respondent/Complainant had taken over the vehicle and sold it in public auction. While things stood thus, the Petitioner received a complaint on 13.12.2018 that the Respondent/Complainant had deposited 9 cheques of different amounts on the same day clai....
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....ions against the Directors of a company who are arrayed as Accused and such allegations should reveal that they were responsible to the company for the conduct of its business at the material time when the offence was committed by the company. Simply because a person is the Director of the company at the relevant time, it does not necessarily mean that he was in charge of and was responsible to the company for the conduct of its business. 22. It is held that "mere absence of an averment in the complaint that the Petitioner-Accused was in-charge of and was responsible to the Company does not justify quashing of the proceedings in these cases inasmuch as the Petitioner-Accused has been shown to be the Managing Director of the Company." This Court obviously took the view that in case of a Managing Director, there need not be an averment in the complaint that he was in-charge of and was responsible to the company. The principle cannot be made applicable in case of a Director, as it is common knowledge that some of the Directors may not even be knowing as to what is going on day-to-day in the company, they may not do anything in the business of the company. 28. In this case the co....
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....ble Instruments Act, 1881 - Sections 138 and 141 - Dishonour of cheque - Offence by company - Vicarious liability of the Director/employee of the company - Requirements for launching prosecution - Requisite averments in complaint - Held, for launching a prosecution against the alleged Directors, there must be a specific allegation in the complaint as to the part played by them in the translation - Allegation should be clear and unambiguous as to how the Directors were in charge and responsible for the conduct of the business of the company - Description should be clear. C. Negotiable Instruments Act, 1881 - Sections 138 and 141 - Dishonour of cheque - Offence by company - Vicarious liability of the Director/employee of the company - Requisite averments in complaint - Requirement of - Held, the precise words from Section 141 need not be reproduced in the complaint and the court can always come to a conclusion on fats in each case - However, the absence of any averments or specific evidence would result in the complaint becoming not entertainable. 3.4.In another decision of the Hon'ble Supreme Court in the case of S.M.S. Pharmaceuticals Ltd., -vs- Neeta Bhalla and another re....
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....nt/Complainant further submitted that the complaint is filed against one Pushpa Kumar. He claims to be the Chief Executive Officer in both the Companies and he sought loan from the Respondent/Complainant. While granting loan, the Petitioner herein had issued cheques and the cheques were presented, which was returned with an endorsement 'insufficient funds'. Therefore, notice was issued on all the Accused. The learned Counsel for the Respondent invited attention of this Court to the averments in the complaint furnished along with this Petition. He also invited the attention of this Court to the loan transaction of the Respondent/Complainant. Further, the learned Counsel for the Respondent/Complainant submits that it is a case involving crores of rupees, where the Petitioner had after availing loan, failed to repay the same and thereby committed offence under Section 138 of Negotiable Instruments Act. 5.If at all the submission of the learned counsel for the Petitioner is to be accepted, it is to be considered as valuable defence only at the time of trial and not at this stage while exercising discretion under Section 482 of Cr.P.C. Therefore, the learned counsel for the Res....