TaxTMI 
TaxTMI 
2025 (7) TMI 274
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....he Respondents, M/s Om Shiv Garments, M/s Richa Fashion, M/s GP Collection and M/s Fine Creations through common AR Sh. Subhash Sethia against M/s. Shyam Retails (India) Pvt. Ltd and total 13 Directors including Sh. Manoj Rungta, Petitioner, on the averments that six cheques dated 11.03.2016 were issued in favour of the Complainant Company, M/s Shyam Retails (India) Pvt. Ltd. on presentation, got dishonored on account of "Funds Insufficient" vide respective Return Memo. The Complainants had issued separate Legal Notice dated 08.06.2016, 10.06.2016 and 13.06.2016, leading to filing of the aforesaid four Complaints under Section 138 NI Act. The details of the dishonored cheques are as follows: Cheque No. Dated Amount Payee Date of Dishonor 650181 11.03.2016 Rs. 101,563/- M/s. Om Shiv Garments 30.05.2016 650180 11.03.2016 Rs. 95634/- M/s. Om Shiv Garments 30.05.2016 039177 11.03.2016 Rs. 55,757/- M/s Richa Fashion 27.05.2016 047708 11.03.2016 Rs. 66, 855/- M/s G.P. Collection 04.06.2016 047707 11.03.2016 Rs. 79,546/- M/s Fine Creation 26.05.2016 047706 11.03.2016 Rs. 83, 308/- M/s Fine Creation 26.05.2016 3. The summons were issued against the accus....
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....icariously liable for the alleged offence committed by the Company, M/s Shyam Retails (India) Pvt. Ltd. 9. Therefore, the Impugned Order dated 13.07.2017 is liable to be set aside and he be discharged. 10. The Respondent No.2 was duly served with the summons of the Petition but did not choose to appear despite multiple opportunities. 11. Submissions heard and record perused. 12. The Complainant Companies filed the aforesaid four Complaints under Section 138 of the NI Act against M/s Shyam Retails (India) Pvt. Ltd. and its Directors, of which Petitioner was one of the Director. 13. The first ground on which discharge is sought is that there are no specific averments specifying the role of the Petitioner, Sh. Manoj Rungta in the accused Company, in the entire Complaint. Only an omnibus averment is made that the accused Company was working through its Directors. The Cheques in question were issued on 11.03.2016 and returned vide various memos for the reason "Funds Insufficient". The Petitioner, Sh. Manoj Rungta had resigned on 18.12.2015 and was neither the signatory to the cheques nor is the whole-time Director of the Company, at the time when the said cheques in question were i....
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.... in charge of and was not responsible for the conduct of the business of the company at the relevant time, will not be liable for a criminal offence under the provisions. The liability would not ipso facto arise merely on the basis of merely holding a designation or office in a Company. 18. In recent judgement in Ashok Shewakramani v. State of A.P., (2023) 8 SCC 473, the allegation made in the Complaints were that the Appellants are managing the Company and are busy with day-to-day affairs of the Company. It was further averred that they are also in charge of the Company and are jointly and severally liable for the acts of Accused Company. The Apex Court observed that only by saying that a person was in charge of the Company at the time when the offence was committed is not sufficient to attract sub-section (1) of Section 141 of the NI Act. The requirement of sub-section (1) of Section 141 of the NI Act is something different and higher. Every person who is sought to be roped in by virtue of sub-section (1) of Section 141 of the NI Act, must be a 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....
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....oj Rungta has resigned from the position of Director of the Accused Company on 19.12.2015 and had duly informed the ROC vide Form DIR-12 on 25.12.2015 which is well within the period of 30 days. The Resignation of the Petitioner, Sh. Manoj Rungta was duly accepted by the ROC at Kolkata with effect from 19.12.2015. 25. The contention of the Petitioner, Sh. Manoj Rungta, that he had resigned from the position as the Director of the Accused Company, M/s Shyam Retails (India) Pvt. Ltd, is supported by DIR-12/Form 32, which is a public document, the authenticity of which is not questioned by the Respondents. Petitioner had resigned from the Company in December, 2015. 26. However, the question which arises is whether this Form 32 which the petitioner has relied can be considered at this stage of framing of Notice or it is the defense which can be considered only during the evidence. 27. Every Company is required to maintain at its registered office a register of its Directors, Managing Director, Manager and Secretary containing the particulars with respect to each of them as set out in clauses (a) to (e) of sub-section (1) of Section 303 of the Companies Act, 1956. Sub-section (2) of ....