sat 1 cri wp 2041-2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 2041 OF 2011 Santhanama Krishanmurthy & Anr. ...Petitioners vs. State of Maharashtra ...Respondents & Ors. Mr.Shivshankar Banarjee i/b. Mr.Samir M. Suryawanshi for the Petitioners. Ms.A.T. Jhaveri, APP for the State. Mr.Mohan P. Tekavde with Mrs.Swati M. Takavde and Mr.Sachin Dere for Respondent No.2. CORAM : M.L. TAHALIYANI, J. DATED : NOVEMBER 24, 2011 P.C. :- 1 Affidavit filed by respondent no.2 be taken on record. Copy be given to the learned Counsel for the petitioners. Arguments of learned Counsel Mr.Banerjee for the petitioners sat 2 cri wp 2041-2011 are heard. 2 The petitioners are accused nos.8 and 9 in a criminal Case No.8211/SS/2010 pending in the 7th Court of Metropolitan Magistrate, Dadar, Mumbai. 3 It is submitted that the petitioners were not in-charge and were not responsible to the Company for conduct of day to day business of the company and as such, they cannot be held vicariously liable for the acts done by the other Directors. 4 Admittedly cheque in question has not been signed by the petitioners. However what is necessary to be examined is whether necessary averments were made against the petitioners in the complaint. sat 3 cri wp 2041-2011 5 The learned Counsel for the petitioners has relied upon the judgment of the Hon'ble Supreme Court in the case of National Small Industries Corporation Ltd. Vs. Harmeet Singh Paintal and Another, reported at (2010) 3 SCC 330. Taking support from the observations made by the Hon'ble Supreme Court in the said judgment, it was submitted that since there are no allegations against the petitioners in the complaint that they were in-charge and responsible to the company for conduct of day to day business of the company, they cannot be held responsible for the offence, if any, committed by the company. 6 The learned Counsel for respondent no.2 has relied upon the judgment reported sat 4 cri wp 2041-2011 at 2011 (2) Bom.C.R.(Cri.) 577 in the case of Rallis India Ltd. vs. Poduru Vidya Bhusan & Ors. in which it was held that the primary responsibility of the complainant is to make specific averments in the complaint so as to make the accused vicariously liable. It was further held that it is not necessary for the complainant to show that the accused, partner or the Director as the case may be, was aware of each and every transaction of the company or the firm as the case may be. It was further held in the judgment that the proviso to Section 141 of the Act clearly lays down that if the accused is able to prove to the satisfaction of the Court that offence was committed without his knowledge or he had exercised due diligence to prevent the commission of offence, he will not be sat 5 cri wp 2041-2011 liable to be punished. 7 In the light of the judgments cited before me, I have gone through the copy of the complaint annexed to the petition. Respondent no.1 has stated in his complaint that accused nos.6 to 10 were participating in day to day business of the company. The role of accused nos.6 to 10 has been specifically stated. 8 In view of these allegations, the averments are sufficient enough to, prima facie, hold that the petitioners, who are accused nos.8 and 9, were in-charge and were responsible to the company for day to day conduct of the business of the company. The petitioners, in view of the provisions of Section 141, can demonstrate before the trial court that the offence, sat 6 cri wp 2041-2011 if any, was committed was without their knowledge and that they had exercised due diligence to prevent the commission of offence. In brief, the disputed facts will be decided at the time of trial. No case is made out for interference by this Court. 9 The petition stands dismissed. Interim order, if any, stands vacated. (M.L. TAHALIYANI, J.)