TaxTMI 
TaxTMI 
2022 (11) TMI 281
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....Act, 1881. ................ Arguments on the point of summoning heard. Further, the court has examined the documents filed by the complainant and is satisfied with regard to sufficiency of grounds to proceed against the accused as prescribed u/s 202 Cr.P.C. In the light of section 141 of Negotiable Instruments Act 1881, the directors of the company are vicariously liable for the acts of the company if they were incharge of, and responsible for the conduct of the business of the company at the time of commission of the offence. Perusal of the record shows that accused no. 1 is registered and private limited company. Further, company's master data form shows that accused no. 4 & 5 are the directors in the accused no. 1 company. Further, the cheque in question has been signed by accused no. 2 on behalf of accused no. 1 company. Further, with regard to proposed accused No.3 Nishant Goyal is dropped from the array of parties as from the material on record, it prima facie appears that he was not the director at the relevant time period. Further, with regard to accused No.4 and 5, ld. Counsel submitted that they are the current directors of the accused No.1 company and are responsible f....
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....ate that : (i) as the cheque was issued on a date (21.08.2021) subsequent to the petitioner's resignation as a director, the petitioner could not have been held vicariously liable under Section 141, in absence of any specific averment that he was in charge and responsible for day-to-day affairs of the accused company. Reliance is placed on the judgment of the Hon'ble Apex Court in 'Girdhari Lal Gupta Vs. D.H. Mehta & Anr.' (1971) 3 SCC 189; (ii) the complainant/respondent was required to make specific averments to satisfy the ingredients of Section 141, the provision being penal in nature ; the petitioner could not have been roped in merely being the signatory of the cheque. In support, reliance is placed on the judgment of the Hon'ble Supreme Court in 'SMS Pharmaceuticals Ltd. vs. Neeta Bhalla', (2005) 8 SCC 89; (iii) requisite notice was not served on the petitioner ; (iv) even if the case of the complainant is accepted in entirety, no prima facie offence is made out against the petitioner. 4.0. On the other hand, the respondent/complainant vide its reply has sought dismissal of this petition with exemplary cost pleading that the petitioner has not approached the court w....
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....used company as registered with ROC (Annexure IV). It is also submitted that the petitioner's plea that the cheque issued by the petitioner is a security cheque or not, is inconsequential in view of the judgement of Hon'ble Supreme Court in the case of 'Sripati Singh v. State of Jharkhand, AIR 2021 SC 573'. 5.0. I have duly considered the submissions made by both the sides. 6.0. Before appreciating the rival contentions, it would be appropriate to refer at the outset to the relevant provision of law i.e. Sections 138 and 141 NI Act, which read as under :- 138 Dishonour of cheque for insufficiency, etc., of funds in the account. -Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, wit....
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....ect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Explanation.- For the purposes of this section,- (a) "company" means any body corporate and includes a firm or other association of individuals; and (b) "director", in relation to a firm, means a partner in the firm.] 7.0 The respondent in its complaint under Section 138 read with Sections 141 and 142 NI Act has stated that the accused no. 1 is a private limited company and the petitioner (accused no. 2 in the complaint) is the signatory of the dishonoured cheque in question; and was the director at the time of signing of the cheque in question. 7.1. Complaint also mentions that the accused no. 1 company, as a seller, entered into a 'Seller Service Agreement' dated 24.02.2020 with the complainant and listed the membership agreement which provides details of future receivables, from the customer of the accused no. 1 and its affiliate therewith. A Tripartite Agreement/undertaking dated 17.02.2020 was executed between the ....
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....o dated 28.07.2021 for the reason 'Funds Insufficient". In view of the same, the complainant/respondent had sent an e-mail notice dated 26.08.2021 to the accused persons including the petitioner for payment, but they kept on deferring the same on one pretext or other. Accordingly, a legal notice of demand dated 18.09.2021 was delivered to the accused persons on 20.09.2021 by way of e-mail. The hard copy of the legal notice sent to the accused persons was returned undelivered as the accused no. 1 company had vacated both the office addresses. The accused persons failed to make the payment of the abovementioned cheque amount to the complainant within 15 days of receipt of the same. 8.0. As per the averments made in the complaint, it was the petitioner, who on behalf of the accused company, in his capacity as a director, had signed various agreements; and (in his capacity as authorised signatory), had issued the aforesaid dishonoured cheque towards the liability arising out of the said business transaction. 8.1. Admittedly, the petitioner (accused no. 2) was the director of the accused no. 1 company; and the dishonoured cheque dated 21.08.2021 for Rs. 1, 33,67,470.88/- was issued by....
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.... email id, [email protected] still appears on the MCA master data, which clearly show that the resignation submitted by the petitioner is simply a sham and tendered only to avoid the liability. 9.4. In rebuttal, Ld. counsel for the petitioner argued that except stating that the petitioner is a director of the accused company and is a signatory of the cheque in question, there is no specific averment in the complaint about the petitioner being in-charge and responsible to the company for the conduct of its business. 9.4.1. In this respect, it would be pertinent to refer here to the judgment of the Hon'ble Supreme Court in case titled K.K. Ahuja vs. V.K. Vora and Another, (2009) 10 SCC 48, wherein it has been held that : "27. The position under Section 141 of the Act can be summarised thus: (i) ............... (ii) In the case of a Director or an officer of the company who signed the cheque on behalf of the company, there is no need to make a specific averment that he was in charge of and was responsible to the company, for the conduct of the business of the company or make any specific allegation about consent, connivance of negligence. The very fact that the....
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.... then tender their resignation before the date of its encashment." 9.5.2 Thus, the plea of the petitioner that he could not have been summoned as he had already resigned prior to presentation of the cheque, more so in the light of other facts and circumstances as discussed above, hardly holds any water. 9.6. In view of the above facts and circumstances, the judgments in the Kamal Goyal's case (supra) and K. Bhaskaran's case (supra) as relied upon by the petitioner, are hardly of any assistance to the petitioner. 9.6.1. In K. Bhaskaran's case (supra), it was rather held that 'the 'presumption envisaged in Section 118 of the Act can legally be inferred that the cheque was made or drawn for consideration on the date, which the cheque bears. Section 139 of the Act enjoins on the Court to presume that the holder of the cheque received it for the discharge of any debt or liability. The burden was on the accused to rebut the aforesaid presumption by putting his defence.' 9.6.2. In Kamal Goyal's case (supra), the Hon'ble Supreme Court held that : "12. ......... He having resigned from the directorship much prior to even presentation of the cheque for encashment, he cannot be vicariou....