Vicarious liability of directors under Section 141(1) of the Negotiable Instruments Act, 1881 is contingent on their position at the time of the offense, and procedural irregularities in taking cognizance can be rectified during trial.

JUDGMENT

(Prayer: Criminal Original Petition is filed under Section 482 of the Code of Criminal Procedure, to call for the records in C.C.No.2321/2018 on the file of the Fast-Track Court IV Metropolitan Magistrate Court, George Town, Chennai and quash the same against the petitioners.

This Criminal Original Petition has been filed to quash the proceedings in C.C.No.2321 of 2018, on the file of the Fast Track Court No.IV, Metropolitan Magistrate Court, George Town, Chennai.

2. The facts and figures of the case is that the respondent/complainant being a banking company provides various banking facilities and loans to his customers. The 1st petitioner company represented by the 2nd & 3rd petitioners made request to advance a Lease Rental Discounting Facility of Rs.72,00,00,000/- (Rupees seventy two crores only) and a second Lease Rental Discounting Facility of Rs.7,19,00,000/- (Rupees seven crores nineteen lakhs only) and the same were granted under the loan Nos.IF0000699671 and IF0000703303 vide loan agreements, dated 28.02.2011 and 22.12.2014. In discharge of partial liability, the accused had issued a cheque bearing No.011711, dated 20.06.2018 for Rs.57,72,43,611/- (Rupees fifty seven crores seventy two lakhs forty three thousand six hundred and eleven only), drawn on Axis Bank Limited, Corporate Banking Branch, Chennai. When the said cheque was presented for collection on 25.06.2018, it was returned unpaid on 26.06.2018 for the reason -Account Closed-. Thereafter, the statutory notice was issued to all the petitioners on 06.07.2018. The 1st & 3rd petitioners received the same on 07.07.2018 and the notice sent to the 2nd petitioner returned with an endorsement -Unclaimed-. The 1st petitioner company had sent a reply, dated 21.07.2018 with untenable and false statements. Ignoring the same, the above complaint has been lodged by the respondent against the petitioners.

3. It is further averred in the complaint that the said cheque was signed and issued by the accused towards part repayment of loan availed by the accused company. The 1st petitioner is a limited company, in which the 2nd & 3rd petitioners are Managing Director and Director and, are key persons known to the respondent in charge of the day to day affairs of the 1st petitioner company. The 2nd and 3rd petitioners are the persons, who take decision onkey business matters and affairs of the 1st petitioner company. They have also dealt and interacted regularly with the respondent at the time of availing the loan facility and also thereafter. The 2nd & 3rd petitioners issued the said cheque in discharge of legal subsisting liability to the respondent. Hence, invoking Section 141(1) of the Negotiable Instruments Act, 1881, the 2nd and 3rd petitioners were arrayed as accused in this case.

4. The submissions of the learned counsel for the petitioners are as follows:-

(i) The admitted case of the respondent is that the loan agreements are dated 28.02.2011 and 22.12.2014, which are enforceable upto 28.02.2014 and 22.12.2017 as per the Limitation Act. The cheque in question was given by the accused on 20.06.2018. On the date of issuance of cheque, all debts alleged to have been received by the petitioners have become time barred. Mere giving a cheque, without anything more, will not receive a time barred debt. On perusal of the complaint, there is no averment to show that the debt was revived by any written agreement or contract or promise to pay the acknowledgment of the debt in writing or any endorsement in order to give life to the time barred debt. In this case, the 2nd & 3rd petitioners are arrayed as accused on the strength of Section 141(1) of the Negotiable Instruments Act, 1881, since they are vicariously liable. A person, who is sought to be made vicariously liable in the criminal offence to show that person committed the offence at the time of incharge and responsible to the company for the conduct of business. Not every person connected with the company shall fall within