1 WP2691_09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 2691 OF 2009 Neeraj Mehta s/o. S. P. Mehta ... Petitioner Versus The State of Maharashtra and another ... Respondents WITH CRIMINAL WRIT PETITION NO. 2692 OF 2009 Sanjeev Malhotra s/o. S. K. Malhotra ... Petitioner Versus The State of Maharashtra and another ... Respondents WITH CRIMINAL WRIT PETITION NO. 2693 OF 2009 Ms. Bhumika Wadhwa ... Petitioner Versus The State of Maharashtra and another ... Respondents WITH CRIMINAL WRIT PETITION NO. 2799 OF 2009 Indrajeet Singh ... Petitioner Versus The State of Maharashtra and another ... Respondents Ms Pallavi Kumavat, Advocate i/b. Mr. S. G. Rajput for the Petitioner in W.P. Nos. 2691/2009, 2692/2009 and 2693/2009. Mr. Anand Kumar and Mr. Jahangir, Advocates for the Petitioner in W.P. No. 2799/2009. Mr. Abbas Mukhtiar, Mr. Ritesh Wagh, Advocates i/b. M/s. K. Ashar & Co. for the respondent No. 2. Mr. S. S. Pednekar, APP for the State. CORAM : B. R. GAVAI, J. TUESDAY, JUNE 28, 2011 P. C. : Rule. Rule made returnable forthwith. Heard by consent. 2 WP2691_09 2. The petitioners in these four petitions who are sought to be prosecuted for the offence punishable under Section 138 read with Section 141 of the Negotiable Instruments Act (“said Act” for short) have approached this Court for quashing and setting aside the Criminal Case No. 3180/SS/2009 pending before the learned Metropolitan Magistrate Court at Bandra. 3. The respondent No. 2 has filed a complaint against the petitioners for the offences punishable under Section 138 read with Section 141 of the said Act. The present petitioners have been arrayed as accused Nos. 3, 9, 10 and 6 in the said proceedings by virtue of they being Directors of the accused No. 1 i.e. Sudarshan Consolidated Limited. The petitioners have approached this Court challenging the issuance of process on the ground that the averments as necessary for fastening the liability by taking recourse to Section 141 of the said Act are absent in the complaint. 4. The Apex Court in the case of National Small Industries Corporation Limited Vs. Harmeet Singh Paintal and another reported in (2010) 3 SCC page 330 held that except the Managing Director, Joint Managing Director and a signatory to the cheque, if a Director of the company is sought to be fastened with the criminal liability by taking aid of Section 141 of the said Act, it is not sufficient only to aver that such a Director was in-charge of the day-to-day affairs of the company and responsible for the conduct of its affairs. It has been held that it is necessary to aver as to what specific role was played by such a Director in day-to-day affairs of the company. Relying on the said judgment of the Apex Court in National Small Industries Corporation Limited (supra), I have held that it is necessary to make a specific averment as to 3 WP2691_09 what role was played by the Director in the day-to-day affairs of the company and the transactions in question. 5. Recently, the Apex Court in the case of Pepsico India Holdings (P) Ltd. Vs. Food Inspector reported in (2011) 1 SCC page 176 while interpreting the provisions of Section 17(2) of the Prevention of Food Adulteration Act, which are analogous to the provisions of Section 141 of the said Act, has observed thus, In a complaint against a company and its Directors, the complainant has to indicate in the complaint itself as to whether the Directors concerned were either in charge of or responsible to the Company for its day-to-day management, or whether they were responsible to the Company for the conduct of its business. A mere bald statement that a person was a Director of the Company against which certain allegations had been made is not sufficient to make such Director liable in the absence of any specific allegations regarding his role in the management of the Company. Having considered the matter in its totality and also having regard to the fact that a manager had been nominated under Section 17(2) of the 1954 Act to be a person in charge of and responsible to the Company for the conduct of its business, the appeals are allowed.” 6. It is, thus, clear that the Apex Court has reiterated that if a Director is sought to be fastened with the criminal liability by taking aid of the Section 141 of the said Act, it is not sufficient only to make a general averment that such a Director was the in-charge of the day-to- day affairs of the company and responsible for the conduct of its affairs. It has been reiterated that it is necessary to aver as to what specific role was played by such a Director in day-to-day affairs of the company. 7. Perusal of paragraphs 2, 4 and 5 would reveal that apart from the general allegations that since the accused are the Directors, and that at all material times, were in-charge and responsible for the conduct 4 WP2691_09 of the business of the accused No. 1 and are looking after the day-to-day affairs of the accused No. 1, nothing more has been stated in the complaint. 8. The present petitions are not filed by either the Managing Directors or the Joint Managing Directors or the person who is a signatory to the cheque. In that view of the matter, petitions deserve to be allowed. 9. Rule is, therefore, made absolute by quashing and setting aside the proceedings in Criminal Case No. 3180/SS/2009 only insofar as the present petitioners are concerned. (B. R. GAVAI, J)