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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
J. C. DOSHI
Kunda Pratap – Appellant
Versus
State Of Gujarat – Respondent
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
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 liab....
The main legal point established in the judgment is the requirement for specific averments and unimpeachable evidence to establish vicarious liability of directors in cases of cheque bounce under Sec....
Specific averments are necessary to establish the liability of a Director under Section 141 of the Negotiable Instruments Act; mere designation is insufficient.
A director who resigns before a cheque is issued cannot be held liable for its dishonour, supported by public documents proving resignation.
A director who resigns before the cheque issuance cannot be held liable under Sections 138 and 141 of the NI Act, evidenced by credible documents demonstrating resignation.
Point of Law : Where there is not even an averment against the Managing Director or joint Managing Director of the Company therein. [Para 11]
The main legal point established in the judgment is that a complaint filed by a company under Section 138 of the Negotiable Instruments Act must be in the name of the company and can be represented b....
Liability under Section 141 of NI Act depends on the role in the conduct of the company's affairs, not just the designation, and the burden of proof lies on the accused to establish lack of knowledge....
Directors cannot be prosecuted under Section 138 of the NI Act without the company being joined as an accused, as vicarious liability requires the company to be a party to the proceedings.
Directors can only be held vicariously liable under Section 141 of the Negotiable Instruments Act if specific averments are made in the complaint regarding their responsibility for the company's cond....
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