BAL KRISHNAN UNITY DRUGS CENTRE Vs. JAISON P V
HIGH COURT OF KERALA
BAL KRISHNAN UNITY DRUGS CENTRE
JAISON P V
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(1.) CR. M. C. No. 3499 of 2003 is filed by the second accused and Crl. M. C. No. 3809 of 2003 is filed by accused Nos. 7 and 8 in C. C. No. 819 of 2003 on the file of the Judicial Magistrate of the First Class. Ernakulam. Crl. M. C. No. 3500 of 2003 is filed by the second accused and Crl. M. C. No. 3810 of 2003 is filed by accused Nos. 7 and 8 in C. C. No. 190 of 2003 on the file of the above court. These petitions are filed for quashing the proceedings in the above two cases. Since the question which arises for consideration is the same and allegations are the same, these petitions are being disposed of by this common order.
(2.) THE petitioners were made accused in the above cases on the basis of complaint filed alleging commission of offence punishable under section 138 of the Negotiable Instruments Act. There is also mention in the complaint that the offences punishable under section 420 of the Indian Penal code was also committed. On going through the complaint it is seen that the allegations are to the effect that the petitioners committed the offence under section 138 of the Negotiable Instruments Act. In the cases, the first accused is a private limited company and the petitioners are stated to be the directors of the company. The cheques alleged to have been issued by the company were dishonoured and alleging that even after accepting notices issued informing the dishonour of the cheques and demanding payment of the amount the accused did not care to pay the amount, complaints were filed alleging commission of offence punishable under the negotiable Instruments Act.
(3.) APART from saying that the petitioners are directors of the rirst accused company, there is no mention in the complaint as to how they are made liable for the offences under section 138 of the Act Section 141 (1) of the above Act says that 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. Sub-section (2) of section 141 says that where offence under the Act has been committed by a company and offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of the offence. A reading of sub-sections (1) and (2) of section 141 of the Act shows that a director of a company can be made liable for the offence under section 138 of the Act in two ways; (1) if he is in charge of and was responsible to the company for the conduct of the business; and (2) if the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of the director. So it is highly necessary to say in the complaint as to how the director of a company is made liable for an offence committed by the company under section 138 of the Act. Only if how a director is made liable for the offence committed by company is stated in the complaint, the accused will be able to know how he is being made liable and what defence he has to take in the case.;
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