PUSHPENDRA SINGH BHATI,J. - (1.) For the reasons stated, the applications for early hearing are allowed.
(2.) With the consent of learned counsel for the parties, these petitions are heard and finally decided today itself.
(3.) All these petitions involve common question of fact and law and hence, they are decided by this common order. 4.1 The petitioners have preferred these criminal misc. petitions under Section 482 Cr.P.C. claiming the following relief :- Cr.L.M.P. No.858/2018 "It is, therefore, most humbly and respectfully prayed that this Criminal Misc. Petition may kindly be allowed and the impugned orders dated 01.02.2018 and 23.07.2016 may kindly be quashed and set aside and the petitioners may kindly be exonerated from the criminal prosecution initiated against them." 4.2 At the outset, learned counsel for the petitioners has given up his relief pertaining to the petitioners no.1 and 2 and makes a limited argument that the cognizance order against the petitioner no.3 may be quashed as the petitioner no.3 was not incharge or responsible to the company for the conduct of business of company. Learned counsel for the petitioners further submits that there are bare averments against the petitioner no.3 and she has neither signed the cheque in question nor there is any averment regarding active role of her in the company. For his limited submission and relief, learned counsel for the petitioners has relied upon the judgment of the Hon'ble Apex Court in the case of Pooja Ravinder Devidasani vs. State of Maharashtra and Anr. (Criminal Appeal Nos.2604-2610 of 2014 arising out of Special Leave Petition (Crl.) Nos.9133-9139 of 2010) decided on 17.12.2014. The relevant portion reads as follows :- "17. There is no dispute that the appellant, who was wife of the Managing Director, was appointed as a Director of the Company-M/S Elite International Pvt. Ltd. on 1st July, 2004 and had also executed a Letter of Guarantee on 19th January, 2005. The cheques in question were issued during April, 2008 to September, 2008. So far as the dishonor of Cheques is concerned, admittedly the cheques were not signed by the appellant. There is also no dispute that the appellant was not the Managing Director but only a non-executive Director of the Company. Non-executive Director is no doubt a custodian of the governance of the Company but does not involve in the day-to-day affairs of the running of its business and only monitors the executive activity. To fasten vicarious liability under Section 141 of the Act on a person, at the material time that person shall have been at the helm of affairs of the Company, one who actively looks after the day-to-day activities of the Company and particularly responsible for the conduct of its business. Simply because a person is a Director of a Company, does not make him liable under the N.I. Act. Every person connected with the Company will not fall into the ambit of the provision. Time and again, it has been asserted by this Court that only those persons who were in charge of and responsible for the conduct of the business of the Company at the time of commission of an offence will be liable for criminal action. A Director, who was not in charge of and was not responsible for the conduct of the business of the Company at the relevant time, will not be liable for an offence under Section 141 of the N.I. Act. In National Small Industries Corporation (supra) this Court observed: "Section 141 is a penal provision creating vicarious liability, and which, as per settled law, must be strictly construed. It is therefore, not sufficient to make a bald cursory statement in a complaint that the Director (arrayed as an accused) is in charge of and responsible to the company for the conduct of the business of the company without anything more as to the role of the Director. But the complaint should spell out as to how and in what manner Respondent 1 was in charge of or was responsible to the accused Company for the conduct of its business. This is in consonance with strict interpretation of penal statutes, especially, where such statutes create vicarious liability. 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. 20. In other words, the law laid down by this Court is that for making a Director of a Company liable for the offences committed by the Company under Section 141 of the N.I. Act, there must be specific averments against the Director showing as to how and in what manner the Director was responsible for the conduct of the business of the Company. 21. In Sabitha Ramamurthy and Anr. Vs. R.B.S. Channbasavaradhya (2006) 10 SCC 581, it was held by this Court that it is not necessary for the complainant to specifically reproduce the wordings of the section but what is required is a clear statement of fact so as to enable the court to arrive at a prima facie opinion that the accused is vicariously liable. [pic]Section 141 raises a legal fiction. By reason of the said provision, a person although is not personally liable for commission of such an offence would be vicariously liable therefor. Such vicarious liability can be inferred so far as a company registered or incorporated under the Companies Act, 1956 is concerned only if the requisite statements, which are required to be averred in the complaint petition, are made so as to make the accused therein vicariously liable for the offence committed by the company. By verbatim reproducing the wording of the Section without a clear statement of fact supported by proper evidence, so as to make the accused vicariously liable, is a ground for quashing proceedings initiated against such person under Section 141 of the N.I. Act. ;