TaxTMI 
TaxTMI 
2025 (6) TMI 1800
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....r of the said accused No.1/ Company are in charge and responsible for looking after the day to day business affairs of the accused no.1/limited company at the relevant time, when the offence of this case under section 138 of N.I. Act was committed. The Respondent herein is the aforesaid accused no.4 who has been acquitted by the impugned judgement. 3. The case of the complainant is that on or about January 5, 2012 the accused persons namely accused no. 2 to 4 approached the complainant for an accommodation loan of Rs. 50,00,000/- for a very short period. The complainant being a business firm trusted the accused persons and their company as a reputed company of solvent persons and thereby agreed to give the said loan amount at its office by issuing a cheque bearing no. 490277 dated January 5th, 2012 for Rs. 50,00,000/- and the accused persons accepted the said amount by encashing the cheque and promise to return the said amount at the earliest. Such receipt of amount by the accused persons including the respondent is reflected and confirmed in the statement of accounts prepared and furnished by the accused persons for the period April 1, 2011 to 31st March 2012 and from April 1, ....
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....ers Ltd. and others learned counsel for the Appellant contended that a three Judges Bench of the Apex Court held even in case of bankruptcy of the company, punishment under section 138 of N.I. Act is applicable and the shield and protection under the Code is not available to the directors of the insolvent firm, who had been involved in the day to day business functioning of the said insolvent firm. 7. Appellant's further case is that the present respondent namely Amit Jhawar, who has been arrayed as accused no.4 in the complaint case, was made director of accused no.1 in 2005 and remained so till 2014 and was looking after day to day business affairs of the said company. 8. Learned Trial Court while recorded the judgment of acquittal held, when the company was winding up in 2013 it had resulted discharge of all the employee and the officers from the service of the company including Board of Directors and control of such a company is taken over by the official liquidator and the official liquidator has to disburse the payment in accordance with the Company Act. Court below further held that in the instant case, the account was blocked by the official liquidator which was the r....
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....that the requirement of sending demand notice under section 138 of N.I. Act has not been complied in the present case. Accordingly he acquitted the accused no.4/ respondent herein. Be it specifically noted that the case has already been filed against the other accused persons. 11. Being aggrieved by the impugned judgment and order of acquittal learned Counsel for the complainant/appellant Mr. Maitra submits that the order of acquittal is wholly unwarranted and is product of non-application of judicial mind on the part of the learned trial Judge and as such the same is liable to be set aside. The evidence on record does not justify the order of acquittal and learned Magistrate proceeded on wrong premises in as much as and on the ground that impugned cheque was issued by the director of the accused/company, when the said company was facing liquidation proceeding under the Company Act. The court below failed to appreciate that the initiation of the liquidation proceeding will not absolve the company and its directors from the offence which has been committed under section 138 read with section 141 of the N.I. Act. The court below also miserably failed to consider the fact that the ....
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.... said date. Accordingly the complainant prima facie was under an obligation to substantiate in his evidence the aforesaid statements made in the complaint that the present appellant/accused no.4 was the person in charge of and responsible for and looking after the day to day business affairs of the said accused no.1/company at the relevant time, when the offence was committed. On perusal of evidence of PW-1 and PW-2 it does not appear that the complainant/appellant has substantiated the said claim that at the time of commission of the offence the appellant herein was anyway responsible for the day to day business of the company or he was anyway responsible for the issuance of the impugned cheque. On the contrary PW-1 clearly admitted in his cross examination that he knows that accused no. 1/ company had gone into liquidation vide Hon'ble High Court's order dated 29.07.2013 in connection with the CP No. 63 of 2013. PW-2 also admitted that it is a fact that vide order dated 29.07.2013 passed by the Hon'ble High Court, the accused no.1/company went into liquidation though it was not within his knowledge that the official liquidator, appointed by the Hon'ble High Court took control or ....
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.... averment in the complaint so as to make the accused vicariously liable and the complainant at that stage is supposed to know only generally as to who in charge of the affairs of the company or firm but in the present case said ratio is not applicable in view of the fact that the complainant was supposed to know that the accused company had gone into liquidation long before the filing of the complaint and secondly even though it is not averred in the complaint as to how the complainant is responsible but still the complainant could have substantiate the role of the appellant in issuing the cheque during evidence adduced by PW-1 and 2. 20. Needless to say that like the present case, there may be number of directors in a company but in the absence of evidence that the particular director is vicariously liable for commission of the offence of the company, both in charge of and was responsible for the conduction of the business of the company, the ingredients of section 141 of the N.I. Act cannot be said to be satisfied. When the company had gone into liquidation on 29.07.2013 and the official liquidator appointed by the High Court had taken over charge of the asset of the company, ....