The necessity of specific averments and proper verification in the complaint to establish vicarious liability under section 141 of the N.I. Act.

Abdullah Gulamahmed Uraizee, J.

1. This group of five petitions are disposed of by the present common judgment as the issue involved therein, is common.

2. These petitions are filed under section 482 of the Code of Criminal Procedure, 1973 to quash and set aside the criminal complaints No. 1002/2009, 9993/2009, 9998/2009, 9996/2009, 7314/2009 lodged against the present appellant and others by respondent No. 1.

3. The respondent No. 1 filed the above referred complaints for the offences punishable under section 138 of the Negotiable Instruments Act ("N.I. Act"), 1881, for dishonour of the cheque in the Court of learned Metropolitan Magistrate, the N.I. Special Court No. 2, Ahmedabad. The learned Magistrate, after recording the verification of respondent No. 1 was pleased to issue process against the applicant and others for offence punishable under section 138 of N.I Act. The applicant has approached this court under section 482 of the Code, for quashment of the complaint on various grounds.

4. I have heard Mr. Aditya Choksi, learned advocate for Mr. Ajaykumar Choksi for the appellant, and Mr. K.L Pandya learned Additional Public Prosecutor for the State. The respondent no1, original complainant has not entered appearance either in person or by duly instructed advocate despite service of notice of rule.

5. Mr. Choksi, learned advocate has stoutly urged that the complaints lodged against the present applicant are as vague as they could be. He submits that there is no specific allegation against the applicant nor is there any role attributed to him, in the complaint. He further submits that the applicant is not involved in the day to day affairs of the company, as he was busy with his medical practise at Jaipur. He further urged that the disputed cheque is not signed by the applicant, and that the applicant cannot be held vicariously liable for the transaction in question merely because he was the Director of the said company. He further urges that the applicant cannot be vicariously held liable for the illegal acts of other directors. In support of his contentions he has relied upon the decision of the Supreme Court in the case of National Small Industries Corporation Limited Vs. Harmeet Singh Paintal and another, (2010) 3 SCC 330 and in the case of Aparna A. Shah Vs Sheth Developers Private Limited and another, (2013) 8 SCC 71. He submits that the learned Magistrate has not recorded the verification as directed by this Court in the case of Dr. Rajan Sanatkumar Joshi Vs. Rajnikant Govindlal Shah and Anr., 2007 Cri.L.J. 2318. He, therefore, urges that the impugned complaint so far as it relates to the present applicant may be quashed and set aside.

6. Before examining the various contentions canvassed by learned advocate Mr. Choksi, for the applicant, it would be apposite to refer to section 141 of the N.I Act which is in respect of the offences by the companies which reads as under:

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 in charge 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.

1. 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. a [Provided further that where a person is nominated as a Director of a company by virtue of his holding any office or employment in the Central Government or State Government or a financial corporation owned or controlled by the Central Government or the State Government, as the case may be, he shall not be liable for prosecution under this Chapter.]

(2) Notwithstanding anything contained in sub-section (1), wh