News Details

Vicarious liability of Directors in 138 NI Act cases

                              IN THE SUPREME COURT OF INDIA



                   CRIMINAL APPEAL NOS.2604-2610  OF 2014

                               ARISING OUT OF

             SPECIAL LEAVE PETITION (CRL) NOs. 9133-9139 OF 2010














      Leave granted.


2.    These appeals by special leave are filed by the appellant  challenging the impugned judgment and order dated 6th October, 2010 passed by  the  High Court of Judicature at Bombay in Writ Petition Nos. 614-620 of 2010  whereby the High Court dismissed the writ petitions filed by the  appellant  seeking quashing of the complaints filed by the Respondent No.2  under  Section  138 read with Section 141 of the Negotiable Instruments Act,  1881  (hereinafter referred to as "the N.I. Act").


3.    The brief facts of these appeals are that Respondent No. 2, a  finance Company, filed seven complaints under the N.I.  Act  against  the  appellant and others viz., (1) Complaint No. 3370/SS/2008  claiming  Rs.1,64,69,801-14 (2) Complaint No. 3641/SS/2008 claiming Rs.1,06,55,289-91 (3) Complaint  No. 3368/SS/2008 claiming  Rs.  1,41,95,806-40  (4)  3640/SS/2008  claiming  Rs. 85,21,294/- (5) 3369/SS/2008 claiming  Rs.  1,88,12,292/-  (6)  3642/SS/2008 claiming Rs. 1,69,95,353-50 and (7) Complaint No. 4086/SS/2009 for  a  claim of Rs. 8,08,973-25.  In all the  complaints  the  allegation  was  that  the Respondent No. 2 Company had extended trade finance facility  to  M/S  Elite International Pvt. Ltd. to  which  the  appellant  was  a  Director  at  the relevant time and several Cheques  (119  in  number)  issued  by  M/S  Elite International Pvt. Ltd. aggregating to Rs.8,64,58,810-16,  in  discharge  of its liability towards part payment,  stood  dishonoured  with  the  banker's remarks  "insufficient  funds".   According  to  the  complainant,  at   the material time, the accused (appellant) was in charge  and  at  the  helm  of affairs  of  M/S  Elite  International  Pvt.  Ltd.  and  therefore  she   is vicariously liable for the default of the Company as she is responsible  for the conduct of its business.  Metropolitan Magistrate, 12th  Court,  Bandra, Mumbai took cognizance of the complaints  and  issued  process  against  the accused (appellant) for the offence punishable  under  Section  138  of  the N.I. Act.


4.    The aggrieved appellant filed Criminal Writ Petitions before the  High Court  under  Section  482,  Cr.P.C.  seeking  quashing  of   the   criminal proceedings pending before  the  Metropolitan  Magistrate.  The  High  Court initially by an interim order dated 28th July,  2010  granted  stay  of  the criminal proceedings  qua  th appellant  and  directed  the  trial  to  be proceeded against the other accused. Finally, by  the  impugned  order,  the High Court dismissed the writ petitions filed by the appellant.  Challenging the said order of dismissal,  the  appellant  has  preferred  these  appeals before this Court.


5.    The main contention advanced by the learned counsel for the  appellant is that the appellant is merely a housewife who  was  appointed  as  a  Non- Executive Director of M/s  Elite  International  Private  Ltd.  and  had  no active role in the conduct of business of the Company, particularly  in  the issuance of the cheques in question. As a matter of fact, the appellant  had resigned as the  Director  much  before  the  issuance  of  the  cheques  in question, her resignation was also approved by the  Board  of  Directors  in the meeting held on 17th December, 2005. The resignation  of  the  appellant as Director of M/S Elite International Pvt. Ltd. has also been  informed  to the Registrar of Companies by Form No. 20B under Section  159,  Schedule  V, Part II of the Companies Act, 1956 when  the  annual  return  for  the  year ending on 31st March, 2006 was filed. The trade facility was  sanctioned  by the Respondent No. 2 on 19th January, 2005 as per the  Letter  of  Guarantee executed by  the  appellant  on  the  same  date.   The  effective  date  of resignation of the appellant as Director of the Company was  17th  December, 2005. With the result of  approval  of  her  resignation  by  the  Board  of Directors, the appellant ceased to play any role in the  activities  of  the Company. The Cheques in question were issued by  the  Company  in  the  year 2008 i.e. about two and half years after resignation  of  the  appellant  as Director. This fact itself emphasizes that the appellant  was  not  involved in the affairs of the Company when the Cheques were issued and had  no  role either in the conduct of the business of  the  Company  or  in  issuing  the Cheques.

6.    After resignation of the appellant as a Director, Form  32  under  the Companies Act, 1956, pursuant to Section 303(2),  was  filed  by  M/S  Elite International Pvt. Ltd.  on  20th  December,  2005  with  the  Registrar  of Companies indicating the appointments and changes among  Directors.  In  the said Form 32, the names of two  Directors  who  were  newly  appointed  were shown with remarks "appointed as  a  Director-Operations"  and  against  the name of the appellant the remarks  "resigned  as  a  Director"  were  shown. Taking note of this Form 32, Respondent No. 2 arrayed  the  newly  appointed Directors as accused Nos. 4 & 5 in the complaints. It  is  thus  clear  that the Respondent No. 2 is well aware of the fact that  the  appellant  was  no longer a part of M/S Elite International Pvt. Ltd,  yet  initiated  criminal proceedings fastening vicarious liability on the appellant.


7.    Learned counsel submitted that to fasten  vicarious  liability  it  is necessary under Section 141 of the N.I. Act that the complainant  must  aver and prove how and in what  manner  the  appellant  was  responsible  in  the conduct of the business of the Company. The complainant shall also state  in the light of proviso to Section 141(1), in what capacity the  appellant  was in charge of day to day affairs of  the  default  Company  at  the  relevant time, particularly when cheques were issued. Respondent No. 2  (complainant) did not fulfill these prerequisites contemplated by the Act  but  sought  to impute the appellant with vicarious liability only on account  of  the  fact that  the  appellant  had  attended  the  Board   Meeting   of   M/S Elite International Pvt. Ltd. held on 14th August,  2004.  In  that  meeting,  the Board  of  Directors  authorized  another  Director  to  execute   necessary documents in connection with trade finance facility from Respondent  No.  2.The mere presence of the appellant in the  Board  Meeting  on  14th  August, 2004 would not amount to an offence punishable  under  Section  138  of  the N.I. Act. Merely arraying a Director of a  Company  as  an  accused  in  the Complaint and making a bald or cursory  statement  without  attributing  any specific role, that the Director is  responsible  for  the  conduct  of  the business would not make a case of vicarious liability against a Director  of the company under Section 141 of the N.I. Act.   Similarly,  simply  stating that the appellant was in charge of the affairs of the Company would not  be sufficient to justify the allegation under Section 138 of the N.I.  Act.  In other  words,  the  complainant   must   explain   the   role   specifically attributable to the appellant in the  commission  of  the  offence.  Placing reliance on this Court's judgment in National Small  Industries  Corporation Vs. Harmeet Singh Paintal & Anr. (2010) 3 SCC 330 learned counsel  submitted that the law is well settled by this Court in a catena  of  cases  that  the complainant should specifically show as  to  how  and  in  what  manner  the accused was responsible.


8.    Despite Respondent No. 2 has  knowledge  of  the  resignation  of  the

appellant as Director of the Company and she has no role in the issuance  of

cheques in question,  yet  as  an  arm  twisting  measure,  the  complainant

arrayed the  appellant  in  the  complaint  as  a  defaulter  and  initiated

criminal proceedings against her. Knowing fully well  about  the  change  of

Directors, Respondent No. 2 unnecessarily  dragged  the  name  of  appellant

into the litigation in a casual and callous manner  and  initiated  criminal

proceedings against her along with the existing  Directors  of  the  Company

which is untenable  under  the  law.  The  Metropolitan  Magistrate  without

proper application of mind issued process and the High Court also  erred  in

construing  the  penal  provision  enunciated  under  the  N.I.   Act,   and

wrongfully dismissed the Criminal Writ  Petitions  filed  by  the  appellant

under Section 482, Cr.P.C.


9.    In support of  his  contention  that  the  appellant  was  no  more  a

Director of the Company and responsible for the conduct of its  business  at

the relevant time, learned counsel relied upon the following:

(i)   Agenda item  4  of  the  Minutes  of  the  Board  meeting  dated  17th

December, 2005 which reads as under:


Chairman placed before the Members of the Board a letter received  from  Ms.

Pooja Devidasani tendering her resignation as a Director of the Company.


Members of the Board noted the same and then they  unanimously  resolved  as



RESOLVED THAT resignation tendered by Ms. Pooja Devidasani be and is  hereby

accepted from the conclusion of this Board Meeting".


(ii)  Form 32 submitted to  the  Registrar  of  Companies  in  pursuance  of

requirements of provisions of the Companies Act, 1956 in which  against  the

name of appellant, it  was  shown  as  "resigned  as  a  Director".  Whereas

against the names of Mr. Hitesh  Haria  and  Mr.  Parag  Tejani,  the  words

"appointed as a Director-Operations" were shown. Against  the  column  "Date

of appointment or change" the dates against  all  the  above  three  persons

were  shown  as  17th  December,  2005.   Taking  note  of  these   changes,

Respondent No. 2 arrayed the newly added Directors as  defaulters,  but  not

omitted the appellant who has resigned as a Director which is  specified  in

the very Form 32.

(iii) The Annual Return filed by  the  Company  for  the  year  ending  31st

March, 2006 which also showed that the appellant was no  longer  a  Director

of the Company.  In Column IV of the  Annual  Return  against  the  name  of

appellant, it was clearly mentioned as "Date of ceasing : 17-12-2005".

A letter dated 5th February, 2009 issued by the default  Company  in  favour

of  Respondent  No.  2.  In  the  said  letter,  while  forwarding   certain

details/information, a list of Directors was also sent. The  said  list  did

not contain name of the appellant.

Learned counsel for the appellant submitted that in the light of  the  above

Respondent No. 2 was fully aware that appellant was ceased to be a  Director

of the Company (a) prior to  the  issuance  of  cheques  (b)  prior  to  the

dishonor of cheques (c) prior to the date of issuance of  legal  notice  (d)

prior to the expiry of 15 days period after issuance of legal  notice  after

which cause of action to file criminal complaints arose  and  (e)  prior  to

the filing of the criminal complaints.

10.   Learned counsel finally submitted that the allegations set out in  the

complaint do not constitute any offence against the appellant and  the  High

Court committed a manifest error in interpreting Section  141  of  the  N.I.

Act in its  proper  perspective,  which  led  to  travesty  of  justice.  He

therefore urged for setting  aside  the  impugned  judgment  and  quash  the

criminal proceedings against the appellant.


11.   Learned senior counsel appearing for the  respondents,  on  the  other

hand, supported the impugned judgment of the High Court and  submitted  that

by dismissing the writ  petitions  of  the  appellant  the  High  Court  had

neither committed any illegality nor misinterpreted the  provisions  of  the

N.I. Act. Vehemently  contending  that  the  resignation  of  the  appellant

itself is a disputed fact, he submitted that no certified copy  of  Form  32

was produced by the appellant and only a certified  copy  of  Annual  Return

has been filed before this Court. Under Section  79  of  the  Evidence  Act,

1872, a Court can presume genuineness of a document only  when  a  certified

copy is filed. Even if  certified  copy  of  Form  32  is  produced  by  the

appellant to contend that at the  time  of  issuance  of  cheques,  she  had

already resigned, when such Form 32  is  disputed  by  the  complainant,  it

shall be the bounden duty of the appellant to prove such Form 32 by  leading

evidence in the trial. Only supplying a copy of  Form  32,  without  proving

its contents, would not be sufficient to quash  a  complaint  under  Section

138 read with Section 141 of the N.I. Act.


12.   In support of his contention that when the Form 32  furnished  by  the

appellant was disputed by the Respondent No. 2 the High  Court  cannot  draw

an inference on the basis of such disputed document, learned counsel  relied

on decisions of this Court in Chand Dhawan Vs.  Jawahar  Lal  (1992)  3  SCC

317, Malwa Cotton and Spinning Mills Ltd. Vs. Virsa Singh  Sidhu  (2008)  17

SCC 147. Therefore,  the  High  Court  was  right  in  dismissing  the  writ

petitions preferred by the appellant. Hence the appellant  cannot  take  the

plea of her resignation to escape from legal liability  that  too  when  the

resignation itself is a disputed fact. Unless and until trial  takes  place,

it cannot be held that the appellant is no more a Director and  not  liable.

At  the  material  time  relating  to  the  financial  transaction   between

Respondent No. 2 and the accused Company, the appellant was a  Director  and

looking after the day to day affairs of  the  Company  as   a  Director  and

hence she is  liable  to  be  prosecuted  since  she  had  connived  in  the

commission of offence.

13.   Learned counsel further submitted that apart from the  averments  made

in the complaint, the appellant has also executed an irrevocable  Letter  of

Guarantee on 19th January, 2005 in favour of Respondent  No.  2-Complainant,

for availing trade finance facility. In the said Letter  of  Guarantee,  the

appellant categorically undertook that in the event of the  Company  failing

or neglecting or refusing to pay  the  amount  remaining  unpaid,  the  same

would be  payable  by  her.  She  further  agreed  that  her  liability  and

obligation under the Guarantee shall be continuing, absolute,  unconditional

and  irrevocable  until  the  borrower  is   fully   discharged   from   all

liabilities,  irrespective  of  any  disputes  or  differences  between  the

parties. The binding clause of the guarantee reads:

"I, the Guarantor, expressly, irrevocably  and  unconditionally  agree  that

your Company shall be entitled to enforce this Guarantee without making  any

demand on or taking any proceedings against the Client for all  the  amounts

due and payable by the Client to your Company under and in relation  to  the



The cheques in question were issued on  the  basis  of  the  said  Guarantee

given by the appellant and on the simple ground of  resignation  she  cannot

deviate from vicarious liability as per the assurance given by  her  in  the

Letter of Guarantee.

14.   Learned counsel for the respondents made a reference to  the  Judgment

of this Court in Gunmala Sales Private Ltd. Vs. Anu Mehta &  Ors.  (Criminal

Appeal No. 2228 of 2014) decided on October  17,  2014  and  submitted  that

once in a complaint filed under Section 138 read with  Section  141  of  the

N.I. Act, the basic averment is made that the Director was in charge of  and

responsible for the conduct of the business of the Company at  the  relevant

time when the offence  was  committed,  the  Magistrate  can  issue  process

against such Director and the basic averment is sufficient  to  make  out  a

case against the Director. Hence,  learned  senior  counsel  concluded  that

there is no illegality in issuing process against the appellant.


15.   We have given our thoughtful consideration to the  arguments  advanced

by the counsel on either side  at  length.  The  questions  that  arise  for

determination are (i) whether the appellant is liable for prosecution  under

Section 138 read with Section 141 of the N.I. Act for  the  alleged  offence

of dishonor of cheques committed by the default Company?; (ii)  whether  the

High Court  was  right  in  dismissing  the  writ  petitions  filed  by  the

appellant seeking quashing of the  criminal  proceedings  initiated  against

her by the Respondent No. 2?

16.   Before delving into the merits of the case, it would be  apt  to  take

note of relevant portions of the complaints filed by Respondent No. 2  which

read thus:

"I say that the accused No.  2  to  5  on  behalf  of  accused  No.  1  have

approached us with request for trade finance facility  and  accordingly  the

said facility has been granted by us to the accused  as  per  their  request

and requirement.


I say that accused No. 1 is private limited Company of which accused No.  2,

3 & 5 are  Directors  and  accused  No.  4  is  the  Director  &  authorized

signatory of accused No. 1 M/S Elite  International  Pvt.  Ltd.-Imprest.  At

all material time relevant and relating to the complaint, accused No.  2  to

5 were and are in charge of and responsible for the conduct of  business  of

accused No. 1 and are also looking after day to day affairs of  accused  No.

1. It is further submitted that accused No. 2 to 5 with accused  No.  1  are

liable to be prosecuted and / or connived in the commission of  the  present

offence, in their capacity as  a  Director/signatory  of  the  said  private

limited Company.


I say that as narrated in para 4 accused No. 2 to 5  being  responsible  for

the affairs of accused No. 1 i.e. private limited Company are liable  to  be

prosecuted for having committed a criminal offence in the event  of  failure

on their part to comply with the requisitions  contained  in  the  statutory

notice dated 03-11-08, which was sent to them both under R.P.A.D.  &  U.P.C.

on 06/11/08. I say that notice was received by all the accused on  or  about

08/11/08 and notice sent through U.P.C. are  deemed  to  have  been  served.

However, accused have failed and neglected to make  our  payment  under  the

above said dishonored cheques".


17.   There is no dispute that the appellant, who was wife of  the  Managing

Director,  was  appointed  as  a   Director   of   the   Company-M/S   Elite

International Pvt. Ltd. on 1st July, 2004 and had also executed a Letter  of

Guarantee on 19th January, 2005. The cheques in question were issued  during

April, 2008 to September, 2008.  So  far  as  the  dishonor  of  Cheques  is

concerned, admittedly the cheques were not signed by  the  appellant.  There

is also no dispute that the appellant was  not  the  Managing  Director  but

only a non-executive Director of the Company. Non-executive Director  is  no

doubt a custodian of the governance of the Company but does not  involve  in

the day-to-day affairs of the running of its business and only monitors  the

executive activity. To fasten vicarious liability under Section 141  of  the

Act on a person, at the material time that person shall  have  been  at  the

helm of affairs of the Company, one who actively looks after the  day-to-day

activities of the Company and particularly responsible for  the  conduct  of

its business. Simply because a person is a Director of a Company,  does  not

make him liable under the N.I. Act. Every person connected with the  Company

will not fall into the ambit of the provision. Time and again, it  has  been

asserted by this Court that only those persons who were  in  charge  of  and

responsible for the conduct of the business of the Company at  the  time  of

commission of an offence will be liable for  criminal  action.  A  Director,

who was not in charge of and was not responsible  for  the  conduct  of  the

business of the Company at the relevant time, will  not  be  liable  for  an

offence under Section 141 of the N.I.  Act.  In  National  Small  Industries

Corporation (supra) this Court observed:

"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.


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

fulfillment of the requirements under Section 141.



18.   In Girdhari Lal Gupta Vs. D.H. Mehta & Anr. (1971)  3  SCC  189,  this

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



19.   A Director of a Company is liable  to  be  convicted  for  an  offence

committed by the Company if he/she was in charge of and was  responsible  to

the Company for the conduct of its business or if  it  is  proved  that  the

offence  was  committed  with  the  consent  or  connivance   of,   or   was

attributable to any negligence on the part of the Director  concerned  [See:

State of Karnataka Vs. Pratap Chand & Ors. (1981) 2 SCC 335].


20.   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 N.I. 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.


21.   In Sabitha Ramamurthy & Anr. Vs. R.B.S.  Channbasavaradhya  (2006)  10

SCC 581, it was held by  this  Court  that  it  is  not  necessary  for  the

complainant to specifically reproduce the wordings of the section  but  what

is required is a clear statement of fact  so  as  to  enable  the  court  to

arrive at a prima facie opinion that  the  accused  is  vicariously  liable.

[pic]Section 141 raises a legal fiction. By reason of the said provision,  a

person although is not personally liable for commission of such  an  offence

would be vicariously  liable  therefor.  Such  vicarious  liability  can  be

inferred so far as a company registered or incorporated under the  Companies

Act, 1956 is concerned only if the requisite statements, which are  required

to be averred in the complaint petition, are made so as to make the  accused

therein vicariously liable for the offence  committed  by  the  company.  By

verbatim reproducing the wording of the Section without  a  clear  statement

of fact supported by proper evidence, so as to make the accused  vicariously

liable, is a ground for quashing proceedings initiated against  such  person

under Section 141 of the N.I. Act.


22.   As held by this  Court  in  Pepsi  Foods  Ltd.   &  Anr.  Vs.  Special

Judicial Magistrate & Ors. (1998) 5 SCC 343, summoning of an  accused  in  a

criminal case is a serious matter. Criminal law cannot be  set  into  motion

as a matter of course. The order of the  Magistrate  summoning  the  accused

must reflect that he has applied his mind to the facts of the case  and  the

law applicable thereto. He has to examine the nature of allegations made  in

the complaint and the evidence both oral and documentary in support  thereof

and would that be sufficient for the  complainant  to  succeed  in  bringing

charge home to the accused. It is  not  that  the  Magistrate  is  a  silent

spectator at the time of recording of preliminary evidence before  summoning

of the accused. The Magistrate has  to  carefully  scrutinise  the  evidence

brought on record and may even himself put questions to the complainant  and

his witnesses to  elicit  answers  to  find  out  the  truthfulness  of  the

allegations or otherwise and then examine if  any  offence  is  prima  facie

committed by all or any of the accused.


23.   In Gunmala Sales Private Ltd. (supra) on  which  learned  counsel  for

the respondents has heavily relied, this Court at Para 33(c) held :

"In the facts of a given case, on an overall reading of the  complaint,  the

High Court may, despite the presence of the  basic   averment,   quash   the

complaint because of the absence of   more   particulars   about   role   of

the Director  in  the  complaint.   It  may  do  so   having   come   across

some unimpeachable, uncontrovertible evidence which is beyond  suspicion  or

doubt or totally acceptable  circumstances  which   may   clearly   indicate

that  the Director could not have been concerned  with   the   issuance   of

cheques  and asking him to stand the trial would be  abuse  of  the  process

of  the  court. Despite the presence of basic averment, it  may  come  to  a

conclusion that no case is  made  out  against  the  Director.    Take   for

instance  a  case  of  a Director  suffering   from   a   terminal   illness

who  was  bedridden   at   the  relevant  time  or  a   Director   who   had

resigned  long  before  issuance  of cheques.  In such cases,  if  the  High

Court is convinced that  prosecuting such  a  Director  is  merely  an  arm-

twisting tactics, the High Court  may   quash  the  proceedings.   It  bears

repetition  to  state  that  to   establish    such    case   unimpeachable,

uncontrovertible evidence which  is  beyond  suspicion  or   doubt  or  some

totally acceptable circumstances will have  to  be  brought  to  the  notice

of the High Court.  Such cases may  be  few  and   far   between   but   the

possibility of such a case being there cannot be ruled out".



24.   In the light of the law laid down by this Court, the present  case  be

examined.  It is not in dispute that two persons, namely, Parag  Tejani  and

Hitesh Haria, were inducted as Director-Operations  of  the  Company  w.e.f.

17th December, 2005 by virtue of a resolution passed by the Company  on  the

same date. It is on the same date the appellant had ceased to be a  Director

as per the Annual Report which is not disputed by the Respondent  No.  2.  A

perusal of the Complaint shows that Respondent No.  2  has  made  the  newly

appointed  Directors-Operations  Parag  Tejani  and  Hitesh  Haria  also  as

accused stating that all the accused  approached  him  with  a  request  for

trade finance facility and accordingly the said facility was granted as  per

their request. It thus gives an impression that Respondent  No.  2  is  well

aware of the change of  Directors  in  the  accused  Company.  In  spite  of

knowing the developments taken place in the Company that the  appellant  was

no longer a Director of the Company and two  new  Directors  were  inducted,

the Respondent No. 2 has chosen to array all  of  them  as  accused  in  the

Complaints.  Moreover,  Respondent  No.  2  had  not  disputed   this   fact

emphatically in the proceedings before the High Court.  We have gone  though

the reply affidavit filed by Respondent No.  2  before  the  High  Court  of



25.   A bare reading of the averment of Respondent No.  2  before  the  High

Court, suggests that his case appears to  be  that  the  appellant  has  not

proved her resignation in unequivocal terms and it is  a  disputed  question

of fact. It is noteworthy that the respondent No. 2  except  making  a  bald

statement and throwing the burden on the appellant to prove authenticity  of

documents, has not pleaded anywhere that the public documents  Form  32  and

Annual Return are forged and fabricated  documents.   Curiously,  respondent

No. 2 on the one hand raises a doubt about the genuineness  of  Form  32,  a

public document, through which the  default  Company  had  communicated  the

change of Directors to the Registrar of the Companies  with  the  effect  of

resignation of the appellant and induction of two  Directors-Operations  and

on the other hand,  he  has  arrayed  the  two  newly  appointed  Directors-

Operations as accused whose names were  communicated  to  the  Registrar  of

Companies by the very same Form 32.  The  respondent/complainant  cannot  be

permitted to blow hot and cold  at  the  same  time.   When  he  denies  the

genuineness of the document, he cannot act  upon  it  and  array  the  newly

appointed Directors as accused.


26.   We have also perused the copy of Annual  Return  filed  by  M/S  Elite

International Pvt. Ltd. for the year 2006, on 31st March, 2006 furnished  in

Form 20B as per Section 159  of  the  Companies  Act,  1956.  Column  IV  of

Schedule V - Part II of the Annual Return,  requires  information  regarding

Directors/Manager/Secretary (Past and Present) in which against the name  of

Devidasani Ravinder Pooja-appellant it was mentioned "Date of ceasing :  17-

12-2005". Admittedly, a certified copy of the Annual Return became  part  of

record. Hence,  we  are  of  the  considered  opinion  that  the  factum  of

appellant resigning from the Board of Directors is established.


27.   Unfortunately, the High Court did not  deal  the  issue  in  a  proper

perspective and committed error in dismissing the writ petitions by  holding

that in the Complaints filed by the Respondent  No.  2,  specific  averments

were made against the appellant. But on the contrary, taking  the  complaint

as a whole, it can be inferred that in the  entire  complaint,  no  specific

role is attributed to the appellant in the  commission  of  offence.  It  is

settled law that to attract a case under Section  141  of  the  N.I.  Act  a

specific role must have been  played  by  a  Director  of  the  Company  for

fastening vicarious liability. But in this case, the appellant  was  neither

a Director of the accused Company nor in charge of or involved  in  the  day

to day affairs of the Company at the  time  of  commission  of  the  alleged

offence. There is not even a whisper or shred of evidence on record to  show

that there is any act committed by the appellant  from  which  a  reasonable

inference can be drawn that the appellant could be vicariously  held  liable

for the offence with which she is charged.


28.   In the entire complaint, neither the role  of  the  appellant  in  the

affairs of the Company was explained nor in what  manner  the  appellant  is

responsible for the conduct of business of the Company, was explained.  From

the record it appears that the trade finance facility was  extended  by  the

Respondent No. 2 to the default Company during the period from  13th  April,

2008 to 14th October, 2008, against which the Cheques  were  issued  by  the

Company which stood dishonored. Much before that on 17th December, 2005  the

appellant  resigned  from  the  Board  of  Directors.  Hence,  we  have   no

hesitation to hold that continuation of  the  criminal  proceedings  against

the appellant under Section 138 read with Section 141 of the N.I. Act  is  a

pure abuse of process of law and it has to be interdicted at the  threshold.



29.   So far as the Letter of Guarantee is concerned, it  gives  way  for  a

civil liability which the respondent No.  2-complainant  can  always  pursue

the remedy before  the  appropriate  Court.  So,  the  contention  that  the

cheques in question were issued by virtue of such Letter  of  Guarantee  and

hence the appellant is liable under Section 138 read  with  Section  141  of

the N.I. Act, cannot also be accepted in these proceedings.


30.   Putting the criminal law into motion is not a matter  of  course.   To

settle the scores between the parties which are more  in  the  nature  of  a

civil dispute, the parties cannot be permitted to put the criminal law  into

motion and Courts cannot be a mere spectator to  it.   Before  a  Magistrate

taking cognizance of an offence under  Section  138/141  of  the  N.I.  Act,

making a person vicariously liable has to ensure strict  compliance  of  the

statutory requirements. The Superior Courts should maintain  purity  in  the

administration of Justice and should not allow abuse of the process  of  the

Court.  The High Court ought to  have  quashed  the  complaint  against  the

appellant which is nothing but a pure abuse of process of law.


31.   For all the foregoing reasons, we are of the view that this is  a  fit

case for quashing the complaint, and  accordingly  allow  these  appeals  by

setting aside the impugned judgment passed by the High Court and  quash  the

criminal proceedings pending against the appellant before the Trial Court.




                              (SUDHANSU JYOTI MUKHOPADHAYA)







DECEMBER  17,  2014