IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 05.09.2008 CORAM THE HONOURABLE MR. JUSTICE K.N. BASHA Crl.O.P.Nos.3709 and 3720 of 2004 & Crl.M.P.Nos.948 to 951 of 2004 Ronaldo Colaco .. Petitioner/1st Accused in both the petitions Vs. M/s.Nelsun Paper Mills Limited, Rep. by its Accounts Officer, Mr.D.Rangamannan, No.229, Old No.106 Kutchery Road, Mylapore, Chennai - 600 004. .. Respondent in both the petitions * * * Prayer : Criminal Original Petition filed under Section 482 of Cr.P.C. to call for the records in C.C.Nos.5430 and 5431 of 2003 pending on the file of the VII Metropolitan Magistrate, George Town, Chennai, and quash the same against the petitioner. * * * For Petitioner in : Mr.T.K.Seshadri, Senior Counsel both the petitions for Mr.T.K.Bhaskar For Respondent : Mr.D.Rajagopal in both the petitions O R D E R Both these petitions are arising out of one and the same transaction between the same parties, namely, the petitioner and the respondent and as such both these maters have been taken up together by mutual consent of both the learned senior counsel for the petitioner and the learned counsel for the respondent for disposal today. 2. In both these petitions, the petitioner, who has been arrayed as A-1 out of three accused, is facing trial for the alleged offence under Section 138 of the Negotiable Instruments Act and he has come https://hcservices.ecourts.gov.in/hcservices/ forward with these petitions seeking for the relief of quashing the proceedings pending in C.C.Nos.5430 and 5431 of 2003 on the file of the learned VII Metropolitan Magistrate, George Town, Chennai, in respect of the petitioner herein. 3. Mr.T.K.Seshadri, learned senior counsel for the petitioner contended that even as per the admitted allegation contained in the complaint, the disputed cheques were signed and issued only by both A-2 and A-3 on behalf of the company. It is contended by the learned senior counsel that as far as the petitioner, who has been arrayed as A-1 is concerned, he has nothing to do with the business affairs of the company, namely, Janamadhyama Prakashana Limited, as he has resigned from the Directorship as early as on 04.10.2001 and even Form 32 was also filed before the competent authority and certified copy was also produced before this Court by the learned senior counsel. It is further contended that even in the 5th Annual Report of the company for the period 2001-2002, it was specifically mentioned under the heading Management and Staff that the petitioner/A-1's Chairmanship expired on 19.06.2000 and due to his involvement in various activities and ventures, he has also resigned from the Board of Directors with effect from 04.10.2001 by submitting Form 32 with the Registrar of Companies. Therefore, in view of these documents, viz., Form 32 and 5th Annual Report of the company for the period of 2001-2002, the petitioner has resigned from the Chairmanship as well as from the Directorship as early as on 19.06.2000 and 04.10.2001 respectively and as such he is nowhere connected with the company. 4. The learned senior counsel pointed out that the disputed cheques in these cases were issued from 05.08.2002 to 15.01.2003 and during the relevant period, the petitioner/A-1, has nowhere in the picture and he has nothing to do with the day-to-day affairs of the company and he was responsible and in-charge of the business of the company and as such the petitioner cannot be held vicariously liable for the offence said to have been committed by the company and other accused. It is further pointed out by the learned senior counsel that in the complaint itself it was clearly mentioned that on the receipt of the statutory notice only A-1 has given a reply and in that reply itself it was clearly stated by A-1 that he has resigned from the Directorship right from 04.10.2001 and he has also submitted Form - 32 before the Registrar of Companies. It is contended by the learned senior counsel that ignoring the said reply given by A-1, the complainant has implicated A-1 also as one of the accused in this case. Therefore, it is contended by the learned senior counsel that allowing the proceedings to continue against the petitioner would amount to a clear case of abuse of process of Court and as such the proceedings in so far as the petitioner is concerned are liable to be quashed. The learned senior counsel, apart from placing reliance on the decisions of the Hon'ble Apex Court also placed reliance on the decision of this Court in M.M.Sabharwal and R.P.Millimoria Vs. https://hcservices.ecourts.gov.in/hcservices/ Mahalakshmi Real Estates and Investments (P) Limited, rep. by S.G.Srinivasan reported in MANU/TN/7868/2006. 5. Per contra, Mr.D.Rajagopal, learned counsel for the respondent contended that there were long-standing transactionS even prior to the resignation of the petitioner as Chairman or Director of the company. It is pointed out by the learned counsel for the respondent that in the complaint it was specifically mentioned that the accused towards the payment covered under invoices issued six cheques drawn on State of Mysore in favour of the complainant. It is further contended that the point of resignation of his Directorship and Chairmanship has to be agitated only at the time of full-fledged trial and such point cannot be raised at this stage and as such the proceedings is not liable to be quashed. The learned counsel for the respondent would place reliance on the decision of the Hon'ble Apex Court in P.Rajarathinam V. State of Maharashtra reported in [(2000) 10 SCC 529]. 6. I have carefully considered the rival contentions put forward by either side and also perused the impugned complaint and other materials produced before this Court. 7. It is seen that the petitioner has been arrayed as A-1 out of three accused and he is facing trial for the alleged offence under Section 138 of the Negotiable Instruments Act. A perusal of the impugned complaint discloses that all these cases are arising out of the alleged dishonour of cheques numbering six and those cheques were issued right from the date, viz., 05.08.2002 to 15.01.2003. It is pertinent to be noted that in the complaint itself it was mentioned at para 11 that the statutory notice dated 26.03.2003 was issued to all the accused including the petitioner, who has been arrayed as A- 1. A-1 only was said to have sent a reply dated 28.04.2003. A perusal of the reply of the petitioner dated 28.04.2003, which discloses that even in the reply notice it was specifically mentioned that the petitioner was neither a Director nor the Chairman during the relevant period of disputed cheques involved in all these cases. But unfortunately ignoring the said reply, the complainant has implicated the petitioner, A-1, also in the complaint. This Court is also constrained to state that the complainant also omitted to mention about the nature of reply given by A-1 to the statutory notice. Therefore, in view of these undisputed facts and also from the perusal of the unimpeachable documents of sterling quality, viz., Form-32, certified copy of which produced before this Court coupled with the perusal of the 5th Annual Report for the period from 2001- 2002, it is crystal clear that the petitioner was neither the Chairman nor a Director during the relevant period of the disputed cheques numbering six involved in all these cases were issued and as such this Court is of the considered view that by no stretch of imagination, the petitioner could be held vicariously liable for the offence committed by other accused. https://hcservices.ecourts.gov.in/hcservices/ 8. The learned senior counsel rightly placed reliance on the decision of this Court in M.M.Sabharwal and R.P.Millimoria Vs. Mahalakshmi Real Estates and Investments (P) Limited, rep. by S.G.Srinivasan reported in MANU/TN/7868/2006 in respect of giving reply to the notice and even in the reply mentioning about the resignation of the petitioner from the Directorship. This Court has held in that decision as follows : "9. The cheques in question have been issued during January 2004. By way of reply notice dated 06.02.2004 the complainant has been informed about the resignation of the petitioners as Directors. Copies of Form 32 submitted before the Registrar of Companies, to substantiate the resignation, also has been enclosed. In spite of that, such aspect has not been taken into consideration in the private complaint. It has been simply stated as follows : A-4 to A-10 being Directors of the accused company are involved in the day-to-day affairs of the management of the first accused. The cheques were issued with the consent and connivance of all the accused." 10. It has been held by this Hon'ble Court in 2006 (4) CTC 529, that if an explanation is given to the statutory notice by way of reply, the same must be taken into consideration before filing of the complaint. In a similar situation, in a case reported in MANU/TN/1565/2006 referred above, the case was quashed as Directors have resigned from the Company long prior to the issuance of the cheque. 11. Though Form 32 is a defence document, and such defence materials could not be looked into at the time of enquiry, exercising inherent powers under Section 482 Cr.P.C., if the materials are of unimpeachable and sterling quality, the same could be looked into for the purpose of quashing the proceedings. This proposition has been held in the judgment reported in State of Orissa V. Debendra Nath Padhi (MANU/SC/1010/2004 : It is evident from the above that this Court was considering the rare and exceptional cases where the High Court may consider unimpeachable evidence while exercising jurisdiction for quashing under Section 482 of the Code." The above principle of law laid down in the decision cited supra is squarely applicable to the facts of the instant case as already pointed out the petitioner was not the Director during the relevant time of issuing the cheques numbering six involved in this case and as such he cannot be held vicariously liable for the offences committed by the company and on this sole ground the proceedings is https://hcservices.ecourts.gov.in/hcservices/ liable to be quashed. 9. It is pertinent to be noted that even assuming if not admitting, the petitioner was the Director during the relevant period of issuing the dishonoured cheques numbering six involved in this matter, this Court is constrained to state that there is no sufficient allegation contained in the impugned complaint to implicate the petitioner to be vicariously held liable for the offence committed by the other accused. It is seen that there is only a vague allegation levelled against the petitioner, who has been arrayed as A-1 as A-1 to A-3 are in-charge of the day-to-day affairs of the company. Admittedly, the petitioner, who has been arrayed as A-1, has not signed and issued the cheques on behalf of the company. Therefore, in the absence of any specific allegation to the effect as to how and in what manner the petitioner, A-1, is in-charge for the day-to-day affairs of the company, the petitioner cannot be held vicariously liable for the offence said to have been committed by the company. 10. The Hon'ble Apex Court in a catena of decisions has held that a particular Director or partner of a business concern cannot be held vicariously liable for the offence said to have been committed by a firm under Section 138 of the Negotiable Instruments Act. The Hon'ble Apex Court in K.Srikanth Singh V. North East Securities Ltd. [(2007) 4 Crimes 310 (SC)] has held that, "5. Negotiation for obtaining financial assistance on behalf of the Company by its Directors itself is not an ingredient for the purpose of constituting an offence under Section 138 of the Negotiable Instruments Act. Furthermore, a vicarious liability on the part of a person must be pleaded and proved. It cannot be a subject matter of mere inference." 11. The Hon'ble Apex Court has taken a similar view in Sarav Investment and Financial Consultants Pvt. Ltd., V. Llyods Register of Shipping Indian Office Staff Provident Fund [(2007) 4 Crimes 244 (SC)]. 12. The Hon'ble Apex Court even in an earlier decision rendered by the Larger Bench in S.M.S.Pharmaceutical Ltd., V. Neeta Bhalla and Another [(2005) 8 SCC 89] has held that, "with a view to make a Director of a Company vicariously liable for the acts of the Company, it was obligatory on the part of the complaint to make specific allegations as are required in law." 13. In yet another decision in N.K.Wahi V. Shekahr Singh and Others [2007 (2) Supreme 811, the Hon'ble Apex Court has taken a similar view as in that decision, it was held that, https://hcservices.ecourts.gov.in/hcservices/ "To launch a prosecution therefore, against the alleged Directors there must be a specific allegation in the complaint as to the part played by them in the transaction. There should be clear and unambiguous allegation ..." 14. The Hon'ble Apex Court has also in yet another decision in Saroj Kumar Poddar V. State (N.C.T. Of Delhi) [(2007) 1 CTC 529 held that, "13. The purported averments which have been made in the Complaint Petitions so as to make the appellant vicariously liable for the offence committed by the Company read as under: "That the accused No.1 is a public limited company incorporated and registered under the Companies Act, 1956, and the accused 2 to 8 are/were its Directors at the relevant time and the said company is managed by the Board of Directors and they are responsible for the in charge of the conduct and business of the company-Accused No.1. However, cheques referred to in the complaint have been signed by the Accused No.3 & 8 i.e. Shri K.K. Pilania and Shri.N.K. Munjal for and on behalf of the Accused Company No.1." 14. .... there is no averment in the Complaint Petitions as to how and in what manner the appellant was responsible for the conduct of the business of the Company or otherwise responsible to it in regard to its functioning. He had not issued any cheque. How he is responsible for dishonour of the cheque has not been stated. The allegations made in paragraph 3, thus, in our opinion do not satisfy the requirements of Section 141 of the Act." 15. In a latest decision in DCM Financial Services Ltd., Vs. J.N.Sareen (2008 AIR SCW 4034), the Hon'ble Apex Court following the earlier decisions in K.Srikanth Singh case and N.K.Wahi's case has held as hereunder : "18. Section 141 of the Act provides for a constructive liability. A legal fiction has been created thereby. The statute being a penal one, should receive strict construction. It requires strict compliance of the provision. Specific averments in the complaint petition so as to satisfy the requirements of Section 141 of the Act are imperative. Mere fact that at one point of time some role has been played by the accused may not by itself be sufficient to attract the constructive liability under Section 141 of the Act." https://hcservices.ecourts.gov.in/hcservices/ 16. Therefore, in view of this decision of this Court and the well-settled principle of law laid down by the Hon'ble Apex Court in a catena of decisions cited supra is squarely applicable to the facts of the instant case as in this case also there is only a bald and vague allegation made against the petitioner/A-1 and such bald and vague allegation itself is not sufficient without making any specific allegation as to how and in what manner A-1, the petitioner herein, was also in-charge and responsible for the conduct of the business affairs of the company. 17. For the aforesaid reasons, the proceedings in so far against the petitioner/A-1 pending in C.C.Nos.5430 and 5431 of 2003 on the file of the VII Metropolitan Magistrate, George Town, Chennai, are hereby quashed. 18. Considering the fact that the cases itself are relating to the year 2003, this Court is constrained to direct the learned VII Metropolitan Magistrate, George Town, Chennai, to expedite the trial as expeditiously as possible and more particularly within a period of six months from the date of receipt of a copy of the order of this Court. These petitions are ordered accordingly. The connected M.Ps. are hereby closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar gg To 1.The VII Metropolitan Magistrate, George Town, Chennai. 2. -Do-Thro The Chief Metropolitan Magistrate, Egmore, Chennai. 2 ccs To Mr.T.K.Bhaskar, Advocate, SR.50517 1 cc To Mr.D.Rajagopal, Advocate, SR.50298 Crl.O.P.Nos.3709 & 3720 of 2004 & Crl.M.P.Nos.948 to 951 of 2004 NTK(CO) SRA(20/01/2009) https://hcservices.ecourts.gov.in/hcservices/