TaxTMI 
TaxTMI 
2022 (8) TMI 1
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....he 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 applicants are not responsible for day to day affairs ....
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....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 March,2014 and describes applicants as independent non executive director. The complaint for offence under Section 138 of NI Act was fled on 30th September,....
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....g, 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 independent director shall not be entitled to any stock option and may receive remuneration by way of fee provided under sub-section (5) of section 197, reimbursement of expenses for participation in the Board and other meetings and profit related commission as may be approved ....
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.... 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 averments in the complaint against the appellants to make them vicariously liable. It is also contended that the appellants were non-executive Directors. However, the complainants counsel had urged that, although some of the appellants claimed themselves to be a non-executive director, the record indicate that, they....