Ashutosh Ashok Parasrampuriya Vs Gharrkul Industries Pvt. Ltd. (Supreme Court of India)
The issue for determination before us is whether the role of the appellants in the capacity of the Director of the defaulter company makes them vicariously liable for the activities of the defaulter Company as defined under Section 141 of the NI Act? In that perception, whether the appellant had committed the offence chargeable under Section 138 of the NI Act?
We are concerned in this case with Directors who are not signatories to the cheques. So far as Directors who are not the signatories to the cheques or who are not Managing Directors or Joint Managing Directors are concerned, it is clear from the conclusions drawn in the aforestated judgment that it is necessary to aver in the complaint filed under Section 138 read with Section 141 of the NI Act that at the relevant time when the offence was committed, the Directors were in charge of and were responsible for the conduct of the business of the company.
In the case on hand, reading the complaint as a whole, it is clear that the allegations in the complaint are that at the time at which the cheques were issued by the Company and dishonoured by the Bank, the appellants were the Directors of the Company and were responsible for its business and all the appellants were involved in the business of the Company and were responsible for all the affairs of the Company. It may not be proper to split while reading the complaint so as to come to a conclusion that the allegations as a whole are not sufficient to fulfil the requirement of Section 141 of the NI Act. The complaint specifically refers to the point of time when the cheques were issued, their presentment, dishonour and failure to pay in spite of notice of dishonour. In the given circumstances, we have no hesitation in overruling the argument made by the learned counsel for the appellants.
FULL TEXT OF THE SUPREME COURT JUDGMENT/ORDER
1. Leave granted.
2. The present appeals are directed against the common judgment and order dated 18th July, 2014 filed at the instance of the appellants under Section 482 of Code of Criminal Procedure, 1973 (herein after being referred to as “CrPC”) against the order dated 10th November, 2012 pursuant to which they were summoned to answer to a charge of Section 138 of Negotiable Instruments Act, 1881 (hereinafter being referred to as the “NI Act”) that came to be dismissed by the High Court under the order impugned.
3. The seminal facts in brief necessary for the present purpose are stated as under.
4. The appellant nos. 1 and 2 in Criminal Appeal @ SLP(Criminal) No. 7573 of 2014 and appellant nos. 2, 3 and 4 in Criminal Appeal @ SLP(Criminal) No. 9520 of 2014 are the Directors of the appellant no. 1(Ameya Paper Mills Pvt. Ltd.) in Criminal Appeal @ SLP(Criminal) No. 9520 of 2014, the Private Limited Company established under the provisions of the Companies Act, 1956. It is the case of respondent no. 1complainant that it is a Private Limited Company dealing in the business of production and selling spices under the name and style of M/s. Gharkul Industries Private Ltd. and the appellants being well acquainted with respondent no.1complainant and being in need of financial assistance for their business approached respondent no.1complainant with a request to provide them financial assistance. Respondent no. 1 complainant considering the relations and need of the appellants provided financial assistance and on negotiations, Memorandum of Understanding was executed which was signed by appellant no. 2Dilip Shrikrishna Andhare(Appellant no. 2 in Criminal Appeal @ SLP(Criminal) No. 9520 of 2014) with consent of all the appellants in the presence of two attesting witnesses.
5. It is also the case of respondent no. 1complainant that all the appellants had agreed that the amount so received from respondent no. 1 would be returned within a specified time as agreed in the Memorandum of Understanding and accordingly payments were made by respondent no. 1complainant as and when demanded by various cheques details which were furnished in the complaint. Accordingly, a total amount of Rs. 1,50,19,831/ was received by the appellants through cheque during the period 23rd November, 2007 to 12th March, 2009, the details of which are as under:
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