The complaint should contain specific averments as required under the law to establish vicarious liability, and the person sought to be made liable should be in charge of and responsible for the conduct of the business of the company at the relevant time.

Judgment:

Prakash Shrivastava, J.

1. This petition under Section 482 of Cr.P.C. has been filed by the petitioner challenging the order dated 10-9-08 taking cognizance of the offence under Section 138 of Negotiable Instruments Act against the petitioner as also the order dated 22-1-09 rejecting the prayer for review of the said order. In brief, respondent No. 1 had filed a complaint under Section 200 of Cr.P.C. alleging commission of offence under Section 138 of Negotiable Instruments Act. The Trial Court on 10-9-08 had heard the arguments of respondent No. 1 on the question of registering the complaint and had taken cognizance of the offence under Section 138 of Negotiable Instruments Act against the petitioner. The petitioner had filed an application for deleting Her name from the array of the parties but the said application was rejected by order dated 22-1-2009 on the ground that after taking the cognizance under Section204 of Cr.P.C., there is no power with the Magistrate to review the said order.

2. Learned Counsel for the petitioner submits that there is no allegation against the petitioner in the complaint and that the petitioner has unnecessarily been added in the complaint only on the ground that petitioner was one of the Director of the Company. He has further submitted that the petitioner had neither signed the cheque in question nor she was responsible for the offence.

3. In spite of service of notice respondents have not appeared to oppose the petition.

4. I have heard the learned Counsel for petitioner and perused the record.

5. It cannot be disputed that Section 141 is a penal provision creating vicarious liability and same must be strictly construed. The complaint should spell out as to how and in what manner the concerned respondent was in-charge of or was responsible to the accused/company for the conduct of its business. A company may have a number of directors and to make any or all the directors as accused in a complaint merely on the basis of a statement that they are in-charge of and responsible for the conduct of the business of the company without anything more is not a sufficient or adequate fulfillment of the requirements under Section 141. (See: National Small Industries Corporation Ltd. Vs. Harmeet Singh Paintal and another, reported in 2010 Cri. L.J. 1907).

6. It is also settled position in law that with a view to make a director of a company vicariously liable for the acts of the company, it is obligatory on the part of the complainant to make specific allegations as are required under the law and under Section 141 of the Act and that in absence of such specific averments in the complaint showing as to how and in what manner the director is liable, the complaint should not be entertained. [See: Saroj Kumar Poddar Vs. State (NCT of Delhi), reported in 2007 (5) M.P.H.T. 431 (SC) : (2007) 3 SCC 693; SMS Pharmaceuticals Vs. Neeta Bhalla and another, reported in AIR 2005 SC 3512; and Sabitha Ramamurthy Vs. R.B.S. Channabasavaradhya, reported in 2006(4) M.P.H.T. 212 (SC) : AIR 2006 SC 3086]. It is also settled position in law that for launching a prosecution against the alleged directors, there must be a specific allegation in the complaint as to the part played by them in the transaction. [See: N.K. Wahi Vs. Shekhar Singh and others, reported in (2007) 9 SCC 481]. It is also necessary to specifically aver in a complaint under Section 141 that at the time when the offence was committed, the person accused was in-charge of, and responsible for the conduct of the business of the company and that the vicarious liability was to be attributed only if the requisite statements, which are required to be averred in the complaint petition are made so as to make the accused/director vicariously liable for the offence committed by the company. [See: Ramraj Singh Vs. State of M.P. and another, reported in (2009) 6 SCC 729].

7. The Supreme Court in the matter of National Small Industries Corporation Ltd. (supra), has laid d