Sufficient averments in a complaint against a director fulfill requirements of Section 141 of the NI Act for vicarious liability. Failure to respond to statutory notices under Section 138 infers liability concerning dishonored cheques.

ORDER :

J. C. Doshi, J.

1. This petition under section 482 of Cr.P.C is filed quash Criminal Complaint No.40459 of 2018, whereby, the petitioner is accused no.2 filed under section 138 read with section 142 of Negotiable Instrument Act.

2. Facts of the case are as under :-

2.1. In the year 2015, on behalf of Accused No.1. Company, the accused No.2 alongwith one Mr. Bhanumurthy, approached the Complainant and solicitated urgent disbursement of funds for developing properties by Accused No.1, i.e., M/S Commune Properties India Pvt Ltd. With assurance and promise from accused, the complainant had remitted an amount of Rs.3,00,00,000/- (Rupees Three crores only) through wire transfer to the bank account of accused no.1 company provided by accused and they have acknowledged the receipt of said amount. The original redemption period was 24 months and accused have assured to pay amount of Rs.6 crores along with profit which shall be paid on its due date i.e. 02.04.2017. That even after lapse of due date, complainant did not receive any payment. Having invested huge amount, the complainant was worried and contacted the accused immediately and enquired about payment of legal dues under contract. At that time the accused requested complainant to wait for some time as they were facing some problem due to market conditions. After exhausting all excuses and reasons, the accused had suggested to enter into definitive agreement dated 14.11.2017, wherein again they have accepted their liabilities and further promised to return the due amount. Under definitive agreement signed and executed by accused no.2 on behalf of accused no.1 company, certain post dated cheques wee issued towards redemption amount and overdue interest payment. As per instructions and request of accused, complainant had presented cheque bearing No.001308 dated 31.07.2018 drawn on HDFC Bank, Koramanagala Branch, Bangalore for Rs.6,00,00,000/- (Rupees Six Crores only) with his banker ICICI Bank, Baroda for realisation of legal dues under contract. Said cheque was dishonored for the reasons ‘funds insufficient’ as per banker’s memo dated 19.09.2018. Complainant send legal notice dated 15.10.2018 under sectoin 138 of NI Act informing about dishonor of cheque. The said notice send to accused no.1 has been returned with endoresement ‘door loocked. The notice sent to accused no.2 to his office address returned with endorsement ‘refused’ on 20.10.2018. Thereafter, complainant has filed complaint under section 138 with section 142 of NI Act against the accused before the learned Chief Judicial Magistrate Court, Vadodara. Hence, present petition.

3. Learned advocate Mr.Manav Mehta for the petitioner seeking quashment of Criminal Complaint would submit that the petitioner has resigned from Directorship of M/s.Commune Properties India Pvt. Ltd. With effect from 30.07.2012 and therefore, the petitioner is not Director of the company when private complaint was filed before the learned Trial Court. Referring to page no.32 and 33 being Form No.32 filed with ROC, it is submitted that rebuttable document on record sufficiently establish that when private complaint was filed under section 138 read with section 142 of NI Act, the petitioner who is arrayed as accused no.2 was not responsible for day to day affairs of the company and no vicarious liability can be fasten as he ceased to be Director fo the company after 30.07.2012.

3.1. Secondly, it is submitted by learned advocate Mr.Mehta that private complaint lacks necessary averments required to array t