TaxTMI 
TaxTMI 
2022 (12) TMI 1617
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....ential ingredient to file complaint under Section 138 of N.I. Act are absent in the present case. He submitted that the petitioner no.2 i.e. Saurabh Bansal, alleged to be a working partner of firm namely Narendra Kumar and Brothers was not supported by any document and whatever transactions were made between petitioner no.2 and complainant were in their personal capacity and the company as such was not involved and further petitioner no.3, Narendra Kumar was not even made a party in original complaint and was added by way of amendment which was not permissible. 4. Learned counsel for petitioners also submitted that no notice was issued to petitioner no.3 and no details about service of notice upon petitioners was mentioned in complaint and lastly he submitted that there was no specific allegations in regard to the company as well as petitioners. 5. In support of his submission he has placed reliance upon judgments of Supreme Court in DCM Financial Services Ltd. Vs. J.N. Sareen & Anr, AIR 2008 SC 2255: (2008) 8 SCC 1, Dilip Hariramani Vs. Bank of Baroda, AIRONLINE 2022 SC 668: 2022 SCC OnLine SC 579, Alka Khandu Avhad Vs. Amar Syamprasad Mishra, AIRONLINE 2021 SC 124, S.M.S. P....
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....there is no specific provision in the Code to amend either a complaint or a petition filed under the provisions of the Code, but the Courts have held that the petitions seeking such amendment to correct curable infirmities can be allowed even in respect of complaints. In U.P. Pollution Control Board vs. Modi Distillery And Ors., (1987) 3 SCC 684, wherein the name of the company was wrongly mentioned in the complaint that is, instead of Modi Industries Ltd. the name of the company was mentioned as Modi Distillery and the name was sought to be amended. In such factual background, this Court has held as follows :- " ... The learned Single Judge has focussed his attention only on the [pic]technical flaw in the complaint and has failed to comprehend that the flaw had occurred due to the recalcitrant attitude of Modi Distillery and furthermore the infirmity is one which could be easily removed by having the matter remitted to the Chief Judicial Magistrate with a direction to call upon the appellant to make the formal amendments to the averments contained in para 2 of the complaint so as to make the controlling company of the industrial unit figure as the concerned accused in the....
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....m M/s. Narendra Kumar and Brothers 18 Dal Mandi Meerut City. As per the order placed and payment done on behalf of the firm M/s. Narendra Kumar and Brothers 18 Dal Mandi Meerut City, Narendra Kumar and Shaurabh Bansal are jointly responsible of total legal liability of the firm M/s. Narendra Kumar and Brothers 18 Dal Mandi Meerut City. 15. That it shows that you (Shaurabh Bansal) intentionally and deliberately issued the above said cheques to my client with the different signatures with the intention of cheating and not making the outstanding payments of unpaid price of goods supplied by my clients firm as per your request and the complete goods have been duly received by you within time making the legal liability against your firm for making the payment. 16. That you (Shaurabh Bansal & Narendra Kumar) on behalf of the above said firm that due some an information of dishonour of the above said cheque (cheque No .- 63374 dated 29-01-2021 of the Federal Bank Ltd. 17 Chiipi Tank Begum Bridge Road Meerut) was received by my client on 07-02-2021." 14. In the complaint, above referred averments are reiterated in paragraphs nos.2,3,6,8,10 and 11 (Annexure No.1 to this....
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....twin requirements of Section 141 has been satisfied, which person(s) then, by deeming fiction, is made vicariously liable and punished. However, such vicarious liability arises only when the company or firm commits the offence as the primary offender. This view has been subsequently followed in Sharad Kumar Sanghi v. Sangita Rane,17 Himanshu v. B. Shivamurthy and Another,18 and Hindustan Unilever Limited v. State of Madhya Pradesh.19 The exception carved out in Aneeta Hada (supra),20 which applies when there is a legal bar for prosecuting a company or a firm, is not felicitous for the present case. No such plea or assertion is made by the respondent." S.M.S. Pharmaceuticals Ltd. (supra) "20. In view of the above discussion, our answers to the questions posed in the Reference are as under: (a) It is necessary to specifically aver in a complaint under Section 141 that at the time the offence was committed, the person accused was in charge of, and responsible for the conduct of business of the company. This averment is an essential requirement of Section 141 and has to be made in a complaint. Without this averment being made in a complaint, the requirements ....
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....of the company or firm, as the case may be. The other administrative matters would be within the special knowledge of the company or the firm and those who are in charge of it. In such circumstances, the complainant is expected to allege that the persons named in the complaint are in charge of the affairs of the company/firm. It is only the Directors of the company or the partners of the firm, as the case may be, who have the special knowledge about the role they had played in the company or the partners in a firm to show before the court that at the relevant point of time they were not in charge of the affairs of the company. Advertence to Sections 138 and Section 141 respectively of the NI Act shows that on the other elements of an offence under Section 138 being satisfied, the burden is on the Board of Directors or the officers in charge of the affairs of the company/partners of a firm to show that they were not liable to be convicted. The existence of any special circumstance that makes them not liable is something that is peculiarly within their knowledge and it is for them to establish at the trial to show that at the relevant time they were not in charge of the affairs of th....
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....rd to responsibility of both accused in the firm, therefore there were sufficient material for purpose of making out an opinion that there were sufficient grounds to proceed against applicants at the stage and order was passed under Section 204 Cr.P.C. 25. The requirement as mentioned in S.M.S. Pharmaceuticals (supra) are prima-facie satisfied that since cheque was issued by the company, through its authorized signatory, therefore, prima- facie, firm has committed an offence as a primary accused and both applicant nos.2 and 3 became vicarious liable, therefore, as held in Dilip Hariramani (supra) prima-facie case is made out against both applicants. 26. S.P. Mani (supra) would also be relevant to mention at this stage that there is no legal acquirement to show that the accused partner was aware about each and every transaction as well as in order to quash the proceedings, the accused has to pursue the High Court by furnishing some sterling and uncontroverted material however, there was no such material before this Court to accept defence version of applicants during challenge to the summoning order. 27. At this stage, it would be also apposite to mention paragraph nos. 16 ....