TaxTMI 
TaxTMI 
2024 (5) TMI 121
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....the present matters are taken up for consideration together and disposed of vide this common judgement. 3. Pithily put, the facts of the case, as discernible from the complaints, are that the respondent company M/s Mahalaxmi Fabrics is engaged in the business of manufacturing Men's jeans. It is alleged that the petitioner alongwith certain other individuals (arrayed as accused Nos. 2 to 6/accused persons in the said complaints) approached the respondent, on behalf of the accused company/City Life Retails Pvt. Ltd., requesting the respondent to supply mens jeans to the accused company as per its requirement. At the same time, an assurance was given that payments under the bills would be made without delay. On the said assurance, respondent supplied the goods from time to time and raised bills qua each transaction, which were duly received and acknowledged by the accused persons. Subsequently, in order to discharge their liability under the bills raised, certain cheques of varied amount ('subject cheques') were issued during July-September, 2019. Upon presentation, the subject cheques were dishonoured and consequently, distinct demand notices qua each of the subject cheques were iss....
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....e parties. This Court, in its jurisdiction under Section 482 Cr.P.C. cannot adjudicate upon such 'triable issues' inasmuch as the same would amount to holding of a 'mini trial', which is unwarranted. Further, the presumption against the petitioner under Sections 118(a) and 139 of NI Act can only be rebutted by adducing evidence. In this regard, reference is made to the decisions in State of U.P. v. Akhil Sharda & Ors. 2022 SCC OnLine SC 820 and Rajeshbhai Muljibhai Patel & Ors. v. State of Gujarat & Anr. (2020) 3 SCC 794. 8. It is further stated that the necessary averments have been made qua the petitioner inasmuch as the complaints clearly state that the petitioner alongwith the other accused persons had approached the respondent regarding supply of goods and had provided assurance of due payment of the bills raised. Further, at the time of issuance of the subject cheques, the petitioner alongwith the other accused persons had assured that the same would be duly encashed. Insofar as the receipt of legal notice is concerned, it is stated that the demand notice had been duly served, which is evidenced from the postal documents. 9. Since the entire matter hinges on the aspect of v....
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....or under this Act, or any other law for the time being in force." 11. Further, as per the Companies (Appointment and Remuneration of Managerial Personnel) Rules, 2014, the duties of the Company Secretary have been provided as under:- * Provide Directors of the company guidance as they may require, with regard to their duties, responsibilities and powers; * Facilitate the convening of meetings and attend Board, committee and general meetings and maintain minutes of the meetings; * Obtain approval from the Board, general meeting, the government, and such other authorities as required under the provisions of the Act; * Represent before various regulators, and other authorities under the Act in connection with discharge of various duties under the Act; * Assist Board in the conduct of affairs of the company * Assist and advise the Board in ensuring good corporate governance and in complying with the corporate governance requirements and best practices; and * Discharge such other duties as may be specified under the Act or rules 12. From the discussion above, it can be culled out that the Company Secretary is a 'key managerial personnel' who performs secretarial function....
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....n be made vicariously liable in terms of Section 141 NI Act. A perusal of the subject complaints would show that nowhere in the said complaints has the respondent averred that the petitioner was in-charge of, and responsible for the conduct of the business of the company. The word 'in-charge of a business' has been interpreted to mean a person having overall control of the day-to-day business of the company. [Girdhari Lal Gupta v. B.H. Mehta, (1971) 3 SCC 189]. In the ordinary course of business, it cannot be said that the petitioner, who was acting as a Company Secretary, would be in-charge of the day-to-day affairs of the company, as required in terms of Section 141(1). Thus, the petitioner cannot be vicariously liable in terms of Section 141(1). Insofar as Section 141(2) is concerned, for the petitioner to be made liable in terms of the said provision, it needs to be shown that there was consent, connivance or neglect on her part, in the issuance as well as the dishonour of the subject cheques. A reading of the above-mentioned extract would show that the petitioner (arrayed as accused No. 6 in the subject complaints) has been impleaded based upon sweeping allegations and bald a....