- (1.) THIS revisional application under Section 482 of the Code of Criminal Procedure, 1972 is directed against the continuance of Complaint Case No. C-28696 of 2010 under Section 138/141 of the Negotiable Instruments Act, 1881 pending before learned Metropolitan Magistrate, 10th Court, Calcutta to the extent it relate to the petitioners, namely, Mahendra Kumar Rustagi and Vivek Sahay being accused Nos. 5 and 7 respectively.
(2.) MR . Sekhar Basu, learned counsel appearing on behalf of the petitioners has invited the attention of this Court to the averments made in paragraph 3 of the petition of complaint by the complainant and has contended that in the absence of specific averments that the accused person "was in-charge of as well as 'responsible for the conduct of the business of the company at the relevant point of time', the provisions of Section 141 of the Negotiable Instruments Act (hereinafter re ferred to the Act) cannot be invoked. The absence of such specific averment strikes at the very root of the prosecution case. He has contended further that merely being in charge of or merely being responsible for the conduct of the business of the company is not sufficient to invoke the rigors of the provisions of Section 141 of the act as amended upto date. The averment must state that the person who is vicariously liable for commission of the offence of the company both was in charge of and was responsible for the conduct of the business of the company. Requirements laid down therein must be read conjointly and not disjunctively.
(3.) MR . Basu has contended that the petitioners in the present case were neither direc tors nor persons who were in charge of and responsible to the company for the conduct of the business the company. In such event, merely stating that they were in charge of the day-to-day management of the company or by stating that they were in charge of and was responsible to the company of the conduct of the business of the company, they cannot be made vicariously liable under Section 141 (1) of the Act.;