TaxTMI 
TaxTMI 
TaxTMI 
2011 (3) TMI 1831
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....these revisional applications the Petitioner has claimed that he was one of the six Directors of M/s. Caritt Moran and Co. Pvt. Ltd. and retired from the post of Director of the company on 12.03.2009 and was not in charge of day to day affairs of the accused company. Yet he has been falsely implicated in the proceedings being case Nos. C/5687/2009, C/5688/2009, C-5689/2009 and C/5690/2009 respectively under Sections 138/141 of the Negotiable Instruments Act now pending before the learned Metropolitan Magistrate, 13th Court, Calcutta. In all these cases the cheques issued by the company on different dates were dishonored on the grounds of "ACCOUNT CLOSED". In fact as the Petitioner was in no way connected with the day to day affair....
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....be dismissed. He has referred to and relied upon the principles laid down in U. P. Pollution Control Board -Vs.- Dr. Bhupendra Kumar Modi and Anr., reported in 2009(1) Crimes 216. It has been held therein that once the Magistrate takes cognizance, it is not for the superior Courts to substitute its own discretion for that of the Magistrate or to examine their case on merits with a view to find out whether or not the allegations in the complaint, if proved, would ultimately end in conviction of the accused. He has also referred to the ratio of the case of Rajesh Bajaj -Vs.- State NCT of Delhi and Ors., reported in 1999 Cri. L.J. 1833 in which it has been held, inter alia, by the Hon'ble Apex Court that complaint need not require to repro....
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....e Bank of Hyderabad, Park Street Branch. Date of presentation Nil Date of dishonour 05.01.2009 Remarks of the Bank ACCOUNT CLOSED Case No. C/5690/2009 Date of issue of the cheque 07.07.2008 Name of Drawer Nil Name of the Drawee Bank Axis Bank Limited Cheque No. 144429 Amount Rs. 50,00,000/- Presented before (Bank) State Bank of Hyderabad, Park Street Branch. Date of presentation Nil Date of dishonour 05.01.2009 Remarks of the Bank ACCOUNT CLOSED Case No. C/5688/2009 Date of issue of the cheque 07.07.2008 Name of Drawer Nil Name of the Drawee Bank Axis Bank Limited Cheque No. 144426 Amount Rs. 50,00,000/- Presented before (Bank) State Bank of Hyderabad, Park Street Branch. Date of presentation Nil D....
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....sentation of the accused company, made a corporate deposit with the accused company for a sum of Rs. 3,00,00,000/- (Rupees Three Crores only) for a period of 91 days and in discharge of their liabilities the said company refunded a sum of Rs. 1,00,00,000/- (Rupees One Crore only) and rest amount of Rs. 2,00,00,000/- (Rupees Two Crores only) was redeposited for a further period of 91 days with the accused company. 5. That in discharge of the said liabilities the accused persons issued a cheque bearing No. 144426 dated 07-07-2008 for Rs. 50,00,000/- (Rupees Fifty Lacs only) each drawn on Axis Bank Ltd. Shakespeare Sarani, Kolkata - 700071 in favour of the complainant company as part payment. 6. That the complainant having received the sai....
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....igned the cheques for the accused company has not been disclosed in the petition of complaint. 6. In the case of S. M. S. Pharmaceuticals Ltd. -Vs.- Neeta Bhalla and Anr., reported in 2005 (8) SCC 89 it has been held by the Hon'ble Apex Court that merely being a Director of a company is not sufficient to make the person liable under Section 141 of the Act. A Director in a company cannot be deemed to be in charge of and responsible to the company for the conduct of its business. The requirement of Section 141 is that the person sought to be made liable should be in charge of and responsible for the conduct of the business of the company at the relevant time. This has to be averred as a fact as there is no deemed liability of a Director ....
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.... under Section 138 or under Section 141 of the Negotiable Instruments Act. In absence of any averment in the complaint as to how and in what manner the Petitioner was responsible for the conduct of the business of the company or otherwise responsible to it in regard to its functioning; he cannot be prosecuted for the vicarious liability of the company. Therefore, a bare perusal of the petitions of complaint demonstrates that the statutory requirements contained either in Section 138 or in Section 141 of the Negotiable Instruments Act have not been complied with. Relying upon the said principles I hold that in absence of any such statement of fact so as to enable the Court to arrive at a prima facie opinion that the accused is vicariously li....