TaxTMI 
TaxTMI 
2022 (8) TMI 1
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.... transactions of this case. Accused no.1 is the customer of complainant company. Directors of accused no.1 had placed orders with the complainant for Electromagnetic Oil Cooled Overband Magnetics Separator on behalf of accused no.1. As per requirement of accused no.1 company, the complainant company delivered the material to consignee at their instance. There was no objection from accused regarding quality and quantity of the goods. In discharge of the liability, the accused no.1 issued a cheque signed by accused nos.11 and 12. The cheque was for an amount of Rs.29,31,849.30. The cheque was presented by complainant with their banker. It was dishonoured with reasons "Funds insufficient". Notice was duly served on accused nos.1, 2, 3, 6, 9, 11 and 12 on 17th August, 2013 and envelope returned to advocate with remark, "Not claimed" regarding accused no.5 and 8. Regarding accused nos.4, 7 and 10, complainant did not receive any postal acknowledgment. Complaint was fled on 30th September, 2013, for the offence punishable under Section 138 of Negotiable Instruments Act ("NI Act", for short). Process was issued. 3. Learned advocate for applicants submitted as follows: (a) The ....
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.... no averments to satisfy the requirements of Section 141 of NI Act is required to be appreciated during the trial. On the basis of the facts stated in the complaint that Court took cognizance of the complaint. It is submitted that the applicants have not brought any unimpeachable evidence which leads to conclusion that the applicants were not in-charge and responsible for the conduct of business of the accused company, at the time of commission of offence. The documents relied upon by the applicant cannot be considered at this stage. Statutory notices were dispatched to applicants on last known address. The postal envelopes returned with remarks not claimed. It is not incumbent upon the complainant to elaborate in the complaint, role played by each Directors in the transaction forming the subject matter of the complaint. Reliance is placed on the decision of the Supreme Court in the case of Ashutosh Ashok Parasrampuriya and Anr. Vs. M/s.Gharrkul Industries Pvt. Ltd. And Ors.2021 All SCR (Cri)2122. 5. The applicants are arrayed as accused nos.5 and 8 in the complaint. The Corporate Governance Report for the year 2013 - 14 refers to composition of Board of Directors as on 31st Mar....
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.... the three financial years immediately preceding the financial year in which he is proposed to be appointed, of- (A) a firm of auditors or company secretaries in practice or cost auditors of the company or its holding, subsidiary or associate company; or (B) any legal or a consulting firm that has or had any transaction with the company, its holding, subsidiary or associate company amounting to ten per cent. or more of the gross turnover of such firm; (iii) holds together with his relatives two per cent. or more of the total voting power of the company; or (iv) is a Chief Executive or director, by whatever name called, of any non-profit organisation that receives twenty-five per cent. or more of its receipts from the company, any of its promoters, directors or its holding, subsidiary or associate company or that holds two per cent. or more of the total voting power of the company; or (f) who possesses such other qualifications as may be prescribed. (7) ..... (8) ..... (9) Notwithstanding anything contained in any other provision of this Act, but subject to the provisions of sections 197 and 198, an indep....
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....osh Ashok Parasrampuriya and Anr. Vs. M/s.Gharrkul Industries Pvt. Ltd. And Ors. (Supra) , relied upon by learned advocate for respondent/complainant the factual matrix was that, according to complainant, the accused- appellants therein had agreed that the amount received from complainant would be returned within a specified time as agreed in memorandum of undertaking and accordingly payments were made by respondent/complainant as and when demanded by various cheques. Letter was issued to the said appellants demanding balance-sheet of the company, which was supplied and accordingly accounts were confirmed by the appellants and they issued a letter admitting the outstanding balance of complainant. According to complainant, the appellants were Directors of accused company and were responsible for conduct of their business for the affairs of the company. The financial assistance was provided to accused by executing MOU, which was signed by one of the appellant with consent of all the other appellants in the presence of two witnesses. All the appellants had agreed that amount would be refunded within stipulated time. The contention of the appellants was that there are no sufficient ave....