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2023 (4) TMI 500
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....Senior Counsel assisted by Mr. Sanjeev Thaker & Abhisst Thaker, learned counsels appearing for and on behalf of respondent No. 2 - original complainant and Mr. J.K. Shah, learned APP for the respondent No. 1 State. 4. Mr. Mukesh Sheth and his family members namely Ridham Sheth, Neepa Shah, Pooja Ridham and Deena Sheth, invested Rs.20 crores in the company namely Parsholi Motor Works Pvt. Ltd., a Company incorporated under the Companies Act, 1956. The Directors of the Company and applicant herein being in-charge of the management of the company, approached the Mukesh Sheth and others, as company needs fresh infusion of share capital for augmenting the working capital to sustain the operations. Parties, including the company entered into share holders agreement and share subscription agreement dated 14.04.2016. The payment worth Rs.20 crores made to the company subject to terms and conditions of the agreement. It is alleged that, the company Parsholi Motors and the persons in-charge of the company, were failed to disbursed and/or allot the shares as per the agreement and accordingly, as per the clauses of the agreements, the investors are entitled to refund the amount. The complai....
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....9 filed by the respondent no. 2 - Nipa Shah are that, she along with her family members invested the tune of Rs.20 crores as a Share Application Money in Parsoli Motor Works Pvt. Ltd., out of which, contribution of the complainant was Rs.2,98,33,240/-. The Company has been arraigned as accused no. 1. The accused Nos. 2, 3 and 4 are the Directors of the accused no. 1 Company, whereas, the accused Nos. 5 and 6 are actively involved and incharge of daily management of the company and all are involved in day to day transactions / affairs of the company. It is further averred that, accused no. 2, 5 and 6, the present applicant herein had executed two agreements called as 'Share Holders Agreement' and 'Share Subscription Agreement'. Both the agreements were being executed by and between the promoters and the present complainant and her family. The present applicant - accused no. 6 had entered upon the said agreement with the complainant and her family members in the capacity as a power of attorney holder of Mohd. Habib Sareshwala, J.W. Khadija and minor Ahmed Sareshwala. The accused no. 5 - Uvesh Sareshwala signed the agreement in the capacity as power of attorney holder of Umar Sareshwa....
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....nal C.J.M. Kalol, issued summons. It needs to be noted that, the oral evidence of the complainant side concluded before the trial Court. The matter is at the stage of recording further statement of the applicant accused. This petition is filed by the applicant accused at the stage of further statement. 11. Mr. R.R. Marshall, learned Senior Counsel appearing for and on behalf of the applicant raised the following contentions : (i) The applicant herein has been arraigned as accused no. 6 mainly on the ground that, he was the signatory of the two agreements. It is in this context, he argued that, the applicant herein being an elder person of the family and POA of the promoters-cum-share holders signed it for and on behalf of the accused, however, on perusing the agreements, it does not transpires that the applicant herein is Director or Representative of the Company. Thus, therefore, merely applicant being a signatory of the agreement, it cannot be said that he was director or representative of the company or involved in day to day affairs of the company. (ii) The applicant already resigned as a Director of the Company with effect from 01.02.2013 and same was appr....
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....ed upon the case of Sunita Palita and others Vs. M/ s Panchami Stone Quarry [2022 Live law (SC) 647], the Apex Court after referring the earlier judgments, (SMS Pharmaceutical Ltd Vs. Neeta Bhalla (2005) 8 SCC 89, KK Ahuja Vs. V.K. Vora, (2009) 10 SCC 148, National Small Industries Corporation Vs. Harmitsinh Paintal, (2010) 3 SCC 330), it was held that, impleadment of Directors or persons of an accused Company, on the basis of the statement that, they are incharge of and responsible for the conduct of the business of the company, without anything more, does not fulfill the requirement of Section 141 of the N.I. Act. 13. In view of the aforesaid contentions, learned Senior Counsel would submit that the allegations in the complaint even if they are taken at their face value, and accepted in their entirety, do not prima-facie constitute an offence or make out a case against the accused herein. The powers to interdict a proceedings either at the threshold or at the inter-mediation stage of trial, is inherent in a High Court on the broad principle that, the allegations made in the FIR or Criminal Complaint, prima-facie do not disclose a triable offence, there can be no reason as to w....
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....cant herein and therefore, when the trial is at the fag end, the High Court at this stage would not enter into disputed facts and therefore, no any exceptional case is made out by the applicant to exercise the inherent powers under Section 482. 16. Before arriving at any conclusion, it would be appropriate to first scrutinize relevant provision of Section 141 of the N.I. Act which reads as under: "141. Offences by companies (1) If the person committing an offence under section 138 is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly: PROVIDED that nothing contained in this subsection shall render any person liable to punishment if he proves that the offence was committed without his knowledge, or that he had exercised all due diligence to prevent the commission of such offence. (2) Notwithstanding anything contained in subsection (1), where any offence under this Act, has been committed by a company a....
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.... of the company are sought to be made personally liable for acts which result in criminal action being taken against the company. It makes every person who, at the time of offence was committed, was in charge of, and was responsible to the company for the conduct of business of the company, as well as the company liable for the offence. The proviso to the subsection contains an escape route without their knowledge or that they had exercised all due diligence to prevent commission of the offence. 18. In the case of S.M.S. Pharmaceuticals (supra), the following questions were referred for determination: "(a) Whether for purposes of Section 141 of the Negotiable Instruments Act, 1881, it is sufficient if the substance of the allegation read as a whole fulfills the requirements of the said section and it is not necessary to specifically state in the complaint that the person accused was in charge of, or responsible for, the conduct of the business of the company. (b) Whether a director of a company would be deemed to be in charge of, and responsible to, the company for conduct of the business of the company and, therefore, deemed to be guilty of the offence unless ....
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....t case, the issue arise for determination, whether the proceedings of private complaint are liable to be quashed in exercise of extra ordinary and inherent jurisdiction? 21. Heard at length learned counsel for the respective parties and perused the contents of the complaint and material placed on record. 22. It is the contention raised by the applicant that, at relevant time, he had signed two agreements for and on behalf of promoters, except this, he had no role to play in the alleged offence and therefore, his case would not fall under Section 141 of the Act and ingredients are not satisfied. The applicant herein has been arraigned as accused no.6 in the complaint. From the complaint, it appears that, the accused no.2, 3 and 4 are Directors of accused no.1 company. It is averred that, the accused no.5 and 6 i.e. present applicant and one Uvesh Yunush are actively involved in day to day transaction/affairs of the company and authorized signatory of the accused no.1. It is further averred in complaint that, accused no.2, 5 and 6 had entered upon two agreements, in the capacity as a power of attorney holder of the promoters and authorized signatory. It is further averred that,....