TaxTMI 
TaxTMI 
2022 (10) TMI 916
X X X X Extracts X X X X
X X X X Extracts X X X X
...., the learned Sessions Judge, Dibrugarh, had dismissed the Criminal Revision No. 21(2) of 2017, preferred by the petitioners against the order dated 20.03.2017, vide which the learned Addl. Chief Judicial Magistrate, Dibrugarh had decided to proceed against the accused No.1 and 2 as the main grievance was against them, only on the submissions made by the complainant side. 3. The factual background, leading to filing of the present petition, is briefly stated as under: "M/s Chitra Chemicals is a proprietorship Firm represented by its sole proprietor Shri Samar Rakshit. And M/s Kamakhya Tea Co. (P) Ltd. is a private company having its registered office at 4 Hasting Park Road, New Alipur, Kolkata-700027, and Shri Shiv Kumar Kanoi was the Director of M/S Kamakhya Tea Co. (P) Ltd. and one Satya Narayan Singh and Subhash Parekh were the Manager and Field Officer of Monohari Tea Estate, owned by M/s Kamakhya Tea Co. (P) Ltd. and they were the persons responsible for the affairs of the company, at the relevant time. M/s Kamakhya Tea Co. (P) Ltd., while acting through Satya Narayan Singh and Subhash Parekh, the Manager and Field Officer of Monohari Tea Estate, respectively, had issued el....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Addl. CJM, Dibrugarh while taking cognizance; (iii) That, the Company of which the petitioner No.2 was Director had already been sold out vide e-auction, dated 16.03.2015; (iv) That, even if the averments made in the complaint is taken at its face value the same do not constitute any offence against the petitioner in terms of section 141 of the N.I. Act; (v) That, there is no averment in the complaint as how and in what manner the petitioners were responsible for the conduct of the business of the company or otherwise responsible to its functioning as well as in issuance of the cheques, and as such they cannot be held responsible for dishonor of the cheques; (vii) That, without looking into the aspect of requirement of section 141 of the N.I. Act the learned Addl. C.J.M, Dibrugarh had taken cognizance against the petitioners and also ignored the guidelines laid down by Hon'ble Supreme Court in the case of S.M.S. Pharmaceuticals Ltd. vs. Neeta Bhalla and others reported in (2005) 8 SCC 89; 5. Mr. S.K. Goswami, the learned counsel for the petitioners, besides reiterating the points mentioned herein above, also submits that the petitioner No.2 was the Managing Director....
X X X X Extracts X X X X
X X X X Extracts X X X X
....No.1 and they are the persons responsible for the affairs of the company. Further it appears that the complainant had filed the case against the M/s Kamakhya Tea Co. Private Ltd. (proprietor of Manohari Tea Co. Pvt. Ltd.) the Manager and Senior Field Manager (both are of Manohari Tea Estate) and accused No.1, while acting through the accused No.3 and 4, have issued eleven cheques of United Bank of India, Dibrugarh Branch, Dibrugarh for a sum of Rs.6,79,400/ only on different dates in favour of his Firm against the existing debt and liabilities payable to him. A careful perusal of the of the eleven cheques, which were exhibited as Ext, 1 to Ext. 11, reveals that the same were issued in the name of Chitra Chemical, the Firm of the complainant and issued by Sree Kamakhya Tea Co. (P) Ltd. A/c Manohari T.E., and signed by Manager and Senior Field Asstt., Manohari Tea Estate on different dates. Further, it appears that on presentation of the same for encashment by the complainant with its banker, the same returned dishonored with the endorsement 'Fund Insufficient'. 10. It is not in dispute that in order to discharge the liability toward the complainant/respondent, the petitioner compan....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nd from the offence under Section 138 of the NI Act? That section created a statutory offence which on the confluence of the various factors enumerated therein, commencing with the drawing of the cheque and ending with the failure of the drawer of the cheque to pay the amount covered by it within the time stipulated, ripens into a penal liability. 27] The last factor for constituting the offence under Section 138 of the NI Act is formulated in clause c of the proviso to the Section which reads thus : "the drawer of such cheque fails to make the payment of the said amount of money to the payee or as the case may be, to the holder in due course of the cheque within fifteen days of the receipt of the said notice." 28] The words "the drawer of such cheque fails to make the payment" are ostensibly different from saying "the drawer refuses to make payment". Failure to make payment can be due to the reasons beyond the control of the drawer. An illustrative case is, if the drawer is not a company but individual who has become so pauper or so sick as he cannot raise the money to pay the demanded sum. Can he contend that since failure to make payment was on account of such conditions h....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ound to make statement on oath as to how the offence has been committed and how the accused persons are responsible there for. In the instant case there is no such statement. More interestingly the complainant had made averment therein against one Joydev Kumar Kanoi as Director the company. 14. Further, it appears that though it is averred that the petitioner No.2, 3 and 4 are the persons responsible for the affairs of the company, yet, such an averment is not supported by the Affidavit-in-chief of the complainant. There is no such averment in the said Affidavit. Rather, it appears that no role of the accused No.2 is assigned in the Affidavit. Instead, it is being averred in the Affidavit that the accused No.1 while acting through the accused No.3 and 4 have issued eleven cheques of United Bank of India, Dibrugarh Branch, Dibrugarh for a sum of Rs.6,79,400/, only on different dates in favour of the Firm of the complainant against the existing debt and liabilities. Now, the question arises as to whether in absence of any averments against the Affidavit, only a bald assertion in the complaint, is sufficient to take cognizance against the accused No.2. 15. According to Mr. S. K. Gos....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e there for. Such vicarious liability can be inferred so far as a company registered or incorporated under the Companies Act, 1956 is concerned only if the requisite statements, which are required to be averred in the complaint petition, are made so as to make the accused therein vicariously liable for the offence committed by the company. Before a person can be made vicariously liable, strict compliance of the statutory requirements would be insisted." 17. In the case of Saroj Kumar Podder (supra) Hon'ble Supreme Court has held that:- "Allegations to satisfy the requirements of Section 138 of the Act might have been made in the complaint petition but the same principally relate to the purported offence made by the Company. With a view to make a Director of a Company vicariously liable for the acts of the Company, it was obligatory on the part of the complainant to make specific allegations as are required in law." 18. In National Small Industries Corporation Limited v. Harmeet Singh Paintal and Another reported in (2010) 3 SCC 330: the summarization of law on Section 141 N.I. Act is made as under:- "39. From the above discussion, the following principles emerge: (i) The pr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....uirements of Section 141 of the Act. 20. In Pooja Ravinder Devidasani Vs. State of Maharashtra and another, reported in 2015 (88) ACC 613, Hon'ble Supreme Court held that putting criminal law into motion is not a matter of course. A Magistrate taking cognizance of an offence under Section 138/141 of the N.I. Act, making a person vicariously liable has to ensure strict compliance of the statutory requirements. 21. In Ashoke Bafna Vs. Upper India Steel Manufacturing and Engineering Company Limited, reported in (2018) 14 SCC 202 the Hon'ble Supreme Court held that before summoning an accused under Section 138 N.I. Act, the Magistrate is expected to examine the nature of the allegations made in the complaint and the evidence, both oral and documentary, in support thereof, and then to proceed further with proper application of mind to the legal principles on the issue. 22. In the light of the discussion and finding made herein above it cannot be said that the impugned order of learned Addl. Chief Judicial Magistrate dated 30.04.2016, taking cognizance against the petitioner No.2, withstands the test of legality, propriety and correctness. As the accused No.1, acting through t....