IMPORTANT POINT
In an offence committed by a company u/s. 138 of Negotiable Instruments Act in absence of allegations in complaint to suggest that Directors were at any point of time directly or indirectly incharge of business of company or that offence was committed with their consent or connivance or was attributable to any neglect ort their part they can not be roped u/s. 141 of the Act.

D.K. Jain, J. - In this petition under Section 482, Cr. P.C., the petitioners pray for setting aside of the order passed by the learned Metropoliton Magistrate on 17. August. 1996. directing framing of charge against them under Section 138 of the Negotiable Instruments Act. 1881 (for short the Act).

2. M/s. Mahendra Steel Tubes Limited accused No. 1 issued certain cheques signed by its Chairman-cum-managing Director accused No. 2 in favour of respondent No. 1 for purchasing certain goods from them. The said cheques on presentation. Were received back un-paid with the remark Kinsufficient funds". Thereupon a legal notice was issued on behalf of respondent No. 1 to the of orientated Company demanding payment and there being no response to the notice a complaint under the said section was filed against the Company and its three Directors. viz. the Chairman-cum-Managing Director and the petitioners the other two Directors of the Company. After presummoning evidence all the named accused were summoned and charge under Section 138 of the Act was framed against all of them.

3. The present petition has been filed by the two Directors (other than Chairman-cum- Managing - Director) as sailing framing of charge against them on the ground that they never were incharge of the conduct of the business of the accused Company and. therefore cannot be made vicariously-liable for an offence committed by it.

4. I have heard learned Counsel for the parties.

For the petitioners it has been urged that there is no averment or allegation in the complaint nor an in to of evidence on record to show that the petitioners were in-charge of the conduct of the business of the Company or that the offence in question was committed with their consent or connivance and therefore charge under Section 138 of the Act could not be framed against them. In support reliance is placed on a decision of the Supreme Court in Municipal Corporation of Delhi v. Ram Kishan Rohtagi & Ors.1 and a recent decision of this Court in Vikas Pahwa v. State2.

5. For the contesting respondent No. 1 it has been submitted that having regard to the language of Section 141 of the Act. which is wide in amplitude all the persons named in the complaint can be proceeded against under the said section even in the absence of an averment in the complaint to the effect that the said persons were in charge of the conduct of business of the Company. Learned Counsel seeks to derive some support from the observations of the Madras High Court in N. Doraisamy v. M/s. Archana Enterprises3.

6. I am unable to persuade myself to agree with learned Counsel for respondent No. 1 Section 141 of the Act reads as follows:

"141. Offences by companies: (1) If the person committing an offence under Section 138 is a company every person who at the time the offence was committed was incharge of and was responsible to the company for the conduct of the business of the company as well as the company shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. Provided that nothing contained in this sub-section shall render any person liable to punishment if he proves that the offence was committed without his knowledge, or that he had exercised all due diligence to prevent the commission of such offence.

(2) Notwithstanding anything contained in Sub-section (1), where any offence under. this Act has been committed with the consent or connivance of, or is attributable to, any neglect on the part of, any Director, Manager, Secretary or other officer of the Company, such Director, Manager, Secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly."

The position in law is very clear. Officers of the company, who may" be held vicariously liable fall in two categories: (i) those who are incharge of the company and responsible for the conduct of its business and (ii) persons other than fal