Cause Title : Sunita Palita & Others vs M/s Panchami Stone Quarry, The Supreme Court Of India, Criminal Appeal No. Of 2022
Date of Judgment/Order : August 01, 2022
Corum : Indira Banerjee; J., J.K. Maheshwari; J.
Citied: National Small Industries Corpn. Ltd. v. Harmeet Singh Paintal, (2010) 3 SCC 330, Supreme Court
Girdhari Lal Gupta v. D.H. Mehta [Girdhari Lal Gupta v. D.H. Mehta, (1971) 3 SCC 189 : 1971 SCC (Cri) 279 : AIR 1971 SC 2162, Supreme Court
K.K. Ahuja v. V.K. Vora, Supreme Court
S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla, Supreme Court
Pooja Ravinder Devidasani v. State of Maharashtra and Anr., Supreme Court
Background
The Respondent M/s Panchami Stone Quarry, (“PSQ”) filed a petition of complaint, inter alia, against the Appellants under Section 138/141 of the NI Act.
The Respondent claimed that PSQ supplied materials to the Accused Company, M/s MBL Infrastructure Limited, and raised bills totalling Rs.2,31,60,674/- on the Accused Company. The Accused Company had issued an Account Payee Cheque for a sum of Rs.1,71,08,512/- but the cheque was dishonoured. Thereafter, PSQ sent a demand notice by speed post, calling upon the Accused to make payment of the amount of the dishonoured cheque, as per the provisions of Section 138 of the NI Act. Alleging that the Accused Company had not paid the amount of the dishonoured cheque within the time stipulated, PSQ filed the aforesaid complaint under Section 138 read with Section 141 of the NI Act, through its proprietor.
In the said petition of complaint, PSQ alleged “Accused Nos.2, 3, 4 and 5 are the Directors of Accused No.1. i.e., M/s MBL Infrastructures Ltd. respectively [and] are responsible to conduct the day-to-day business affairs of the Accused No.1.
The matter came up before the Judicial Magistrate, 2nd Court, Suri, Birbhum, West Bengal, whence the 3rd, 4th and 5th Accused through their through Advocates filed petitions under Section 205 of the Cr.P.C. and under Section 305 of the Cr.P.C. Sections 205 and 305 of the Cr.P.C. for dispensation of personal appearance claiming that they are independent non-executive Directors of the Accused Company, who are in no way responsible for the day-to-day affairs of the Accused Company. The said petition was declined by the Ld. Magistrate. Single bench of the High court on appeal also rejected the petition. Hence this appeal.
Judgment
The Supreme Court observed that the Accused No.2-Anjanee Kumar Lakhotia is the Managing Director and authorised signatory of the Accused Company. The said Accused No.2, Anjanee Kumar Lakhotia signed the said cheque. In the Petition of Complaint there is a bald averment that the Appellants being the Accused Nos. 3, 4 and 5 were Directors of the Accused Company and responsible for the day-to-day affairs of the Accused Company. This averment is devoid of any particulars.
In National Small Industries Corpn. Ltd. v. Harmeet Singh Paintal, (2010) 3 SCC 330 it has been held that Section 141 is a penal provision creating vicarious liability, and which, as per settled law, must be strictly construed. It is therefore, not sufficient to make a bald cursory statement in a complaint that the Director (arrayed as an accused) is in charge of and responsible to the company for the conduct of the business of the company without anything more as to the role of the Director. But the complaint should spell out as to how and in what manner Respondent 1 was in charge of or was responsible to the accused Company for the conduct of its business. This is in consonance with strict interpretation of penal statutes, especially, where such statutes create vicarious liability.
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A company may have a number of Directors and to make any or all the Directors as accused in a complaint merely on the basis of a statement that they are in charge of and responsible for the conduct of the business of the company without anything more is not a sufficient or adequate fulfilment of the requirements under Section 141.
In Girdhari Lal Gupta v. D.H. Mehta [Girdhari Lal Gupta v. D.H. Mehta, (1971) 3 SCC 189 : 1971 SCC (Cri) 279 : AIR 1971 SC 2162 , Supreme Court observed that a person “in charge of a business” means that the person should be in overall control of the day-to-day business of the Company.......
In other words, the law laid down by this Court is that for making a Director of a company liable for the offences committed by the company under Section 141 of the NI Act, there must be specific averments against the Director showing as to how and in what manner the Director was responsible for the conduct of the business of the company.
In K.K. Ahuja v. V.K. Vora, the Supreme Court discussed the principles of the vicarious liability of the officers of a company in respect of dishonour of a cheque and held that when the accused is the Managing Director or a Joint Managing Director of a company, 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. This is because the prefix “Managing” to the word “Director” makes it clear that the Director was in charge of and responsible to the company, for the conduct of the business of the company. A Director or an Officer of the company who signed the cheque renders himself liable in case of dishonour. Other officers of a company can be made liable only under sub-section (2) of Section 141 of the NI Act by averring in the complaint, their position and duties in the company, and their role in regard to the issue and dishonour of the cheque, disclosing consent, connivance or negligence.
In view of the earlier judgments, the Supreme Court held that the High Court failed to appreciate that none of these Appellants were Managing Director or Joint Managing Director of the Accused Company. Nor were they signatories of the cheque which was dishonoured. The High Court proceeded to hold that, in construing a complaint, a hyper technical approach should not be adopted, to quash the same. Even though the High Court deprecated the adoption of a hyper technical approach in construing pleadings, to quash criminal proceedings, the High Court adopted a hyper technical approach in rejecting the application under Section 482 of the Cr.P.C., on a cursory reading of the formalistic pleadings in the complaint, endorsing the contents of Section 141 of the NI Act, without any particulars.
As held by the Supreme Court in, inter alia, S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla, the liability under Section 138/141 of the NI Act arises from being in charge of and responsible for the conduct of the business of the company at the relevant time when the offence was committed, and not on the basis of merely holding a designation or office in a company. It would be a travesty of justice to drag Directors, who may not even be connected with the issuance of a cheque or dishonour thereof, such as Director (Personnel), Director (Human Resources Development) etc. into criminal proceedings under the NI Act, only because of their designation.
In any event there could be no justification for not dispensing with the personal appearance of the Appellants, when the Company had entered appearance through an authorized officer.
In our considered view, the High Court erred in law in not exercising its jurisdiction under Section 482 of the Cr.P.C in the facts and circumstances of this case to grant relief to the Appellants.
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