- (1.) This petition has been filed by the petitioner under Section 482 of the Code of Criminal Procedure, 1973 (Cr.P.C.for short) for quashing of criminal complaint No. 2625 dated 8.4.2009 (Annexure P-3) under Section 138 of the Negotiable Instrument Act 1881 read with Section 420 of the Indian Penal Code, 1860 and all the subsequent proceedings arising therefrom including the summoning order dated 20.7.2009 (Annexure P-6).
(2.) Learned counsel for the petitioners has sub- mitted that the criminal proceedings in pursuance to the complaint in question were liable to be quashed as continuation of the same would be nothing but abuse of process of law. In support of his arguments, learned counsel has placed reliance on Central Bank of India v. Asian Global Ltd. and others, 2010 7 JT 88wherein, it was held as under:- "15. In this case, save and except for the statement that the Respondents, Mr. Rajiv Jain and Sarla Jain and some of the other accused, were Directors of the accused Companies and were responsible and liable for the acts of the said Companies, no specific allegation has been made against any of them. The question of proving a fact which had not been mentioned in the complaint did not, therefore, arise in the facts of this case. This has prompted the High Court to observe that the Bank had relied on the mistaken presumption that as Directors, Rajiv Jain, Sarla Jain and the other Directors were vicariously liable for the acts of the Company. Admittedly, except for the aforesaid statement, no other material has been disclosed in the complaint to make out a case against the respondents that they had been in charge of the affairs of the Company and were responsible for its action. The High Court, therefore, rightly held that in the absence of any specific charge against the Respondents, the complaint was liable to be quashed and the respondents were liable to be discharged."
(3.) Learned counsel has further placed reliance on National Small Industries Corporation Ltd. v. Harmeet Singh Paintal and anoher, 2010 2 JT 161wherein, it was held as under:- "25) From the above discussion, the following principles emerge : (i) The primary responsibility is on the complainant to make specific averments as are required under the law in the complaint so as to make the accused vicariously liable. For fastening the criminal liability, there is no presumption that every Director knows about the transaction. (ii) Section 141 does not make all the Directors liable for the offence. The criminal liability can be fastened only on those who, at the time of the commission of the offence, were in charge of and were responsible for the conduct of the business of the company. (iii) Vicarious liability can be inferred against a company registered or incorporated under the Companies Act, 1956 only if the requisite statements, which are required to be averred in the complaint/petition, are made so as to make accused therein vicariously liable for offence committed by company along with averments in the petition containing that accused were incharge of and responsible for the business of the company and by virtue of their position they are liable to be proceeded with. (iv) Vicarious liability on the part of a person must be pleaded and proved and not inferred. (v) If accused is Managing Director or Joint Managing Director then it is not necessary to make specific averment in the complaint and by virtue of their position they are liable to be proceeded with. (vi) If accused is a Director or an Officer of a company who signed the cheques on behalf of the company then also it is not necessary to make specific averment in complaint. (vii) 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. This has to be averred as a fact as there is no deemed liability of a Director in such cases.";