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2013 DIGILAW 1188 (RAJ)

Vishnu Lal v. Rajesh Meemani

2013-07-05

KANWALJIT SINGH AHLUWALIA

body2013
JUDGMENT 1. - By this common under order Criminal Misc. Petition No. 1138 of 2012, 1139 of 2012 and 1141 of 2012 shall be decided by common order. In all three petitions almost identical facts have been pleaded and a similar argument of law has been raised. 2. Rajesh Meemani, respondent-complaint had instituted three complaints against Jai Durga Commodity Trading (Pvt.) Ltd. and its two Directors B.R. Sabbarwal and Vishnulal. 3. In the complaint which is subject matter of S.B. Criminal Misc. Petition No. 1138 of 2012, it was stated that a cheque for an amount of Rs. 9,97,174/- was issued on 20.3.2008 which on presentation had bounced for insufficiency of funds. In the complaint which is subject matter of S.B. Criminal Misc. Petition No. 1139 of 2012 it was stated that a cheque for an amount of Rs. Rs. 5,18,888/- was issued on 24.3.2008 and same had also bounced for insufficiency of funds. Similarly in the complaint which is subject matter of Criminal Misc. Petition No. 1141 of 2012, it was stated that a cheque for an amount of Rs. 9,97,174/- was issued on 22.3.2008 and the same was also dishonoured for insufficiency of funds. 4. Complainant lodged three separate complaints to prosecute the petitioner for offence under Section 138 of Negotiable Instruments Act. 5. Counsel for the petitioner seeking quashing of the above said three complaints has raised following two arguments : (a) Firstly in three complaints filed, there is no averments made by the complainant that petitioner being Director was in-charge of the business of the company or was concerned with day to day affairs of the company. (b) Secondly petitioner had resigned as a Director before the date of the issuance of the cheques. In support of this contention reliance has been placed upon letter of resignation Annexurc A-2 which purportedly was received by Registrar of Companies Kanpur on 28.2.2008. 6. It is admitted fact that petitioner is not signatory of the cheque, as cheque has been signed by another Director Shri B.R. Sabbarwal. So far first arguments is concerned, it is settled legal position that a specific averment has to be made in the complaint that accused. Director was responsible for day to day affairs of the company. 6. It is admitted fact that petitioner is not signatory of the cheque, as cheque has been signed by another Director Shri B.R. Sabbarwal. So far first arguments is concerned, it is settled legal position that a specific averment has to be made in the complaint that accused. Director was responsible for day to day affairs of the company. It has been held by the Courts that merely because accused is one of the Director he shall not automatically become vicariously liable for commission of offence on behalf of accused company. A specific averment is required to be made in the complaint that accused being Director was in-charge and responsible for the conduct of the business of the company. The above said view is fortified by ratio of law laid in S.M.S. Pharmaceutical Ltd. v. Neeta Bhalla & Anr., (2007) 4 SCC 70 = 2007 (1) NIJ 581 (SC) . 7. Further more in K.K. Ahuja v. V.K. Vora & Ors., 2009 CrLR (SC) 564 = 2009 (2) NIJ 172 (SC) , it was held that except Managing Director and Company Secretary a specific averment must be made to fasten the Directors of the company with criminal liability by stating as to how they are responsible for affairs of the company. It was held that mere literal expression to attract provisions of Section 138 of Negotiable Instruments Act is not sufficient. Details as to how a Director is responsible for the affairs of the company must be given in the complaint. However, these details are not required to be given qua the Managing Director, Director Finance or Company Secretary of the Company. Recently a Single Bench of this Court in Murugun Navamani v. M/s. Ramavat Construction Pvt. Ltd., 2013 (2) CrLR (Raj.) 1049 , had reiterated the above said legal position. 8. In the present case, I have read the three complaints with the aid of counsel for the parties. No specific averment has been made in the complaints to say that the petitioner was responsible for the conduct of the business of the company and its day to day affairs. Therefore, accepting the first argument raised all the three petitions are allowed and the proceedings emanating from three impugned complaints qua the petitioner are quashed, however, proceedings shall continue against other co-accused. Therefore, accepting the first argument raised all the three petitions are allowed and the proceedings emanating from three impugned complaints qua the petitioner are quashed, however, proceedings shall continue against other co-accused. So far second argument is concerned, petitioner has not placed Form No. 32 whereby resignation was sent to the Registrar of Company on the record of these cases, therefore, at this juncture this Court shall refrain to adjudicate second argument raised before this Court, as petitioner has succeeded on the first argument.Petition allowed. *******