AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2024 (11) TMI 111
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....in financial services. It is stated that the Petitioner herein and Respondent No. 4 herein are the Directors of the Company. It is stated that after the demise of Mr. Nimit Kumar, who was the signatory director to the cheque in question, the Petitioner herein and the Respondent No. 4 are jointly responsible for day to day affairs of the business of the Company and are responsible for all the financial transactions and payments for and on behalf of the company besides being personally involved in making representations to the Complainant for clearing the dues/debts of the Company. It is stated that the Company, acting through its authorized representative had entered into an agreement dated 20.04.2015, whereby the Complainant was induced into disbursing loan of Rs. 10,00,000/- to the Company at an interest of 3% per month. It is stated that a cheque bearing No. 000621, drawn on HDFC Bank, 3 NRI Complex, Mandakini, Alaknanada, New Delhi, was issued by the Company to the Respondent No. 2/Complainant in discharge of its liability. It is stated that it was agreed that the said cheque would be realizable by giving 60 days notice upon failure on the part of the Company to disburse the agr....
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....er states that she has never signed any documents or given her consent to become the Director of the company. Petitioner places reliance on Pooja Ravinder Devidasani v. State of Maharashtra, (2014) 16 SCC 1; Ashok Shewakramani v. State of A.P., (2023) 8 SCC 473, National Small Industries Corpn. Ltd. v. Harmeet Singh Paintal, (2010) 3 SCC 330; S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla, (2005) 8 SCC 89, etc. to contend that there are no requisite averments in the complaint against the Petitioner and that the Petitioner not being the signatory of the cheque in question cannot be made liable for the offence under Section 138 of the NI Act. It is further stated that specific averments have not been made against the Petitioner in the complaint as to how is she responsible for the conduct and business of the company and in the absence of any specific averments, the Petitioner cannot be held vicariously liable. It is further stated that the Petitioner is not a signatory to any of the Loan documents, Security documents of the transaction in question and the cheque which was dishonoured. 6. Per contra, learned Counsel for the Respondent No. 2 states that there are only three Directors in ....
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.... and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155 (2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the Act concerned, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fides and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a vi....
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....to show that the complaint is mala fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court. When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by themselves be the basis for quashing the proceedings. [See Dhanalakshmi v. R. Prasanna Kumar [1990 Supp SCC 686 : 1991 SCC (Cri) 142], State of Bihar v. P.P. Sharma [1992 Supp (1) SCC 222: 1992 SCC (Cri) 192 : AIR 1991 SC 1260], Rupan Deol Bajaj v. Kanwar Pal Singh Gill [(1995) 6 SCC 194 : 1995 SCC (Cri) 1059] , State of Kerala v. O.C. Kuttan [(1999) 2 SCC 651 : 1999 SCC (Cri) 304 : AIR 1999 SC 1044] , State of U.P. v. O.P. Sharma [(1996) 7 SCC 705 : 1996 SCC (Cri) 497] , Rashmi Kumar v. Mahesh Kumar Bhada [(1997) 2 SCC 397 : 1997 SCC (Cri) 415] , Satvinder Kaur v. State (Govt. of NCT of Delhi) [(1999) 8 SCC 728 : 1999 SCC (Cri) 1503 : AIR 1999 SC 3596] and Rajesh Bajaj v. Stat....
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....anies 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 with the statutory requirements would be insisted." 13. In K.K. Ahuja v. V.K. Vora, (2009) 10 SCC 48, the Apex Court discussed the principles of vicarious liability of the officers of a company in respect of dishonour of a cheque and has held as under: "27. The position under Section 141 of the Act can be summarised thus: (i) If the accused is the Managing Director or a Joint Managing Director, it is not necessary to make an averment in the complaint that he is in charge of, and is responsible to the company, for the conduct of the business of the company. It is sufficient if an averment is made that the accused was the Managing Director or Joint Managing Director at the relevant time. This is because the prefix "Managing" to the word "Director" makes it clear that they were in-charge of and are responsible to the company, for the conduct of the business of the company. (ii) In the....
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....particular Director/partner provided the Director/partner is able to adduce some unimpeachable and incontrovertible evidence beyond suspicion and doubt." (emphasis supplied) 15. As observed by the Apex Court in SP Mani (supra) that unless the Director or the Partner is able to adduce some unimpeachable and incontrovertible evidence beyond suspicion and doubt, the High Court should not quash the proceedings under Section 482 Cr.P.C. The master data of the accused company shows that the Petitioner is a Director in the Company. There are only three Directors in the accused company and the Petitioner, apart from stating that she has nothing to do with the affairs of the company has not been able to adduce any unimpeachable and incontrovertible evidence beyond suspicion and doubt to prove the same. The second contention raised by the Petitioner is that there are no specific averments against the Petitioner in the Complaint. In S.P. Mani (supra), the Apex Court, after considering a number of judgments, has held as under: "58. Our final conclusions may be summarised as under: 58.1. The primary responsibility of the complainant is to make specific averments in the complaint so as t....
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....not lead to automatic conviction. Hence, they are not adversely prejudiced if they are eventually found to be not guilty, as a necessary consequence thereof would be acquittal. 58.4. If any Director wants the process to be quashed by filing a petition under Section 482 of the Code on the ground that only a bald averment is made in the complaint and that he/she is really not concerned with the issuance of the cheque, he/she must in order to persuade the High Court to quash the process either furnish some sterling incontrovertible material or acceptable circumstances to substantiate his/her contention. He/she must make out a case that making him/her stand the trial would be an abuse of process of Court." 16. At this juncture, it is pertinent to extract the Relevant portion of the Complaint and the same reads as under: "2. That the accused no. 1 herein is a company involved in financial services. That the accused no. 2 & 3 are the Director of accused no. 1 and after demise of Mr. Nimit Kumar (signatory director to cheque), uudl the accused Nu. 2 & 3 are jointly responsible for day to day affairs of the business of the accused no. 1 and responsible for all the financial transactio....