VERDICT

ROBIN PHUKAN, J. –

This petition under Section 482 of the Cr.P.C. is preferred by the petitioners, namely, (i). Girish Mulshankar Chaudhary and (ii). Kusum Choudhary, for quashing the complaint case, being, C.R. Case No. 2845C/2018, pending before the learned SDJM-II, Kamrup (Metro).

2. The factual background leading to filing of this petition is briefly stated as under:

“The respondent No.1 M/s M. M. Enterprise is a registered partnership firm and Shri Madhab Bhattacharyee and Smti. Junmoni Das are its proprietor. Respondent Nos. 1 and 2-Shri Bijit Mukharjee and Smti. Sabari Bijit Mukharjee, and the petitioner No. 1- Shri Girish Mulshankar Chaudhary and petitioner No. 2- Smti. Kusum Choudhary are the Directors of Sanwaria Infra Space Pvt. Ltd. (accused No. 1), and they are responsible for day-to-day conduct of the business of the Company. M/s M. M. Enterprise has carried out certain works within the State of Assam with Sanwaria Infra Space Pvt. Ltd. (accused No. 1). In order to discharge its liability, M/s Sanwaria Infra Space Pvt. Ltd., issued cheques to the respondent no. 1 amounting Rs. 19,82,000/- (Rupees nineteen lakhs eighty two thousand) which are due. The cheques were deposited by the respondent firm but the same were dishonoured and returned with a report that ‘fund insufficient’. Thereafter, a statutory demand notice was served upon the respondents and the petitioners and thereafter, Complaint Case No. 2845c/2018 has been filed under Sections 138/141 read with Section 142 of Negotiable Instruments Act, 1881 before the Court of the learned SDJM-II, Kamrup (Metro) against the petitioners and the other Directors of M/s Sanwaria Infra Space Pvt. Ltd., upon which, the learned Court below has taken cognizance and issued process. Then being highly aggrieved, the petitioners approached this Court for quashing the complaint case basically on 2(two) grounds, that the petitioner No. 1 tendered his resignation on 01.02.2018, and the petitioner No. 2 tendered her resignation on 03.01.2018, where as the cheques in questions were issued on 27.03.2018 and at the time of issuing the cheque and commission of the offence, the petitioners were not the Director and secondly, that not a single averment in the complaint petition is made against the petitioners regarding the role played by them in the day to day affairs of the company.”

3. The respondent firm M/s M. M. Enterprise has submitted affidavit-in-opposition denying all the averments made in the petition. It is stated that the case has been filed in accordance with law and that though the petitioners have tendered their resignation, the same were not accepted by the Company and their names are still reflected in the web-site of the Company and that the Company is not made a party in the present petition and that a prima-facie case is made out against both the petitioners, and therefore, the inherent power under section 482 Cr.P.C. cannot be exercised to quash the proceeding of this nature against both the petitioners. It is therefore contended to dismiss the petition.

4. Heard Mr. H. Talukdar, learned counsel for the petitioners and Mr. S. P. Das, learned counsel for the respondents.

5. Mr. H. Talukdar, learned counsel for the petitioner, advanced two fold arguments. Firstly, Mr. Talukdar submitted that- at the time of issuance of the two cheques the petitioners were not the Directors of the Company and that they have tendered their resignation on 03.01.2018 and 01.02.2018 respectively, before the issuance of the two cheques on 27.03.2018, and their resignation letters were sent to the Registrar of the Company. Secondly, it is submitted that there is no averments in the complaint as to the role played by the petitioners in commission of the offence and they are responsible for the day to day affairs of the Company. It is further submitted that the petitioners are innocent and no case is made out against them even the allegations made in complaint is accepted as correct and the learned Court below, without applying judicial mind, has taken cognizance against them and therefore, it is contended to quash the complaint case qua the petitioners. Mr. Talukdar, has also referred one case law of Hon’ble Supreme Court in Pooja Ravinder Devidasani vs. State of Maharastra & Anr., reported in 2015 0 AIR (SC) 675, to make good of his submission.

6. Whereas, Mr. S. P. Das, learned counsel for the respondents submits that the present petition is misconceived and filed without arraying the company as accused and that though the petitioners have submitted their resignation from the Board of Directors of the company, yet, the same were not accepted. And as such, Mr. Das submits that the petitioners are still Directors of the Company and are responsible for day to day affairs of the Company. Referring to one case law, Gunmala Sales Private Limited and Ors. vs. Navkar Promoters Private Limited and Ors., reported in (2015) 1 SCC 103, Mr. Das submits that the present complaint case against the present petitioners cannot be quashed and the ex-parte interim order, that has been passed staying the proceeding against the petitioners, may be vacated and the matter may be remanded to the trial Court for disposal.

7. Having heard the submissions of learned Advocates of both sides, I have gone through the petition and the document placed on record of the learned court below carefully. Also, I have gone through the case laws referred by the learned Advocates of both the parties.

8. It appears that the complaint case was filed on 14.05.2018 under Sections 138/141 read with Section 142 of the NI Act by the complainant firm, M/s M. M. Enterprise, against the accused No. 1 M/s Sanwaria Infra Space Pvt. Ltd., accused No. 2- Shri Mukharjee Bijit, accused No. 3 Sabari Bijit Mukharjee, both are Directors of M/s Sanwaria Infra Space Pvt. Ltd ., and the present petitioners Shri Girish Mulshankar Chaudhary and Smti. Kusum Choudhary, arraying them as accused No. 4 and accused No. 5, who were also the Directors of M/s Sanwaria Infra Space Pvt. Ltd., for dishonour of the two cheques issued by the company, accused No. 1, on 27.03.2018, in discharge of their liability to the complainant firm. It also appears that while the cheques were issued on 27.03.2018, the present petitioners, Nos. 1 & 2, who were the Directors of the accused company No. 1, tendered their resignation on 01.02.2018 and 03.01.2018 respectively, much before issuance of cheques on 27.03.2018. Admittedly, they were not the signatories of both the cheques, which returned dishonoured from the bank. The petitioner nos. 1 & 2 had sent their resignation letters to the Registrar of the companies in the Form No. DIR-12 and DIR-11 and the same are uploaded in the website of Registrar of the Companies.

9. Though the learned counsel for the respondent No.1 argued that the resignation letters of petitioner nos. 1 & 2 were not accepted by the Company and as such, they cannot escape being liable vicariously for committing the offence under Section 138 NI Act, yet, such argument left this court unimpressed in as much as they have tendered their resignation before issuance of the cheques by the company. They have sent their resignation and in the Form No. DIR 11 & 12 to the Registrar of the Company and the same are available in the website, the factum of which is not disputed by the respondent side. There is no averment in the complaint as to how they are responsible in issuing the cheques in question after their resignation.

10. It also appears that no specific role is assigned to the petitioners in the complaint except one omnibus statement to the effect that all the accused Directors are liable for issuing the cheques in question despite knowing well that the said cheques would be dishonoured due to insufficient fund and that none of the Directors had exercised any due diligence to prevent the commission of offence. Now the question before this Court is whether the aforesaid averment made in the complaint against the petitioner Nos. 1 & 2 are sufficient to fasten vicarious liability upon them.

11. The learned counsel for the petitioners has pointed out that the aforesaid bald statement is not at all sufficient to fasten vicarious liability upon the petitioners, in view of the law laid down by the Hon’ble Supreme Court in the case of Pooja Ravinder Devidasani (supra). In the said case Hon’ble Supreme Court has held that for making a Director of a company liable for the offence under section 141 of the N.I. Act there must be specific averment against the Directors showing as to how and in what manner the Directors was responsible for the conduct of the business of the Company. Thus, I find substance in the submissions so advanced by the learned counsel for the petitioner and the ratio laid down in the case referred by him fully endorsed his view.

12. In the case in hand admittedly, the petitioners have not issued the cheques and they have tendered their resignation much before issuance of the said cheques, moreover, they were not the Managing Director of the Company. In Pooja Ravinder Devidasani (supra) Hon’ble Supreme Court further held that 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 NI Act on a person, at the material time, that the 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 it business. Simply because a person is a Director of a Company, does not make him liable under the NI 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 person 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 NI Act.

13. In National Small Industries Corporation vs. Harmeet Singh Paintal & Anr., reported in (2010) 3 SCC 330, Hon’ble Supreme Court has observed that Section 141 N.I. Act 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.

14. In the case in hand, having considered the statements made in the complaint and also having considered the submissions advanced by the learned counsels of both the sides, this Court is left unimpressed that the aforementioned requirement is fulfilled here in this case. And as such further proceeding against the petitioners, in the learned court below, to the considered opinion of this court, is nothing but an abuse of the process of the court. In Sabitha Ramamurthy & Another Vs. R.B.S. Channbasavaradhya: (2006) 10 SCC 581, it has been held by the Hon’ble Supreme Court that 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 good ground for quashing proceedings initiated against such person under section 141 of the N.I. Act.

15. I have also considered the submission of learned counsel for the respondent No.1 and also gone through the case law Gunmala Sales Private Limited (supra) referred by him, where it has been held by the Hon’ble Supreme Court as under:-

“When in view of the basic averment process is issued the complaint must proceed against the Directors. But, if any Director wants the process to be quashed by filing a petition under Section 482 of the Code on the ground that only a bald averment is made in the complaint and that he is really not concerned with the issuance of the cheque, he must in order to persuade the High Court to quash the process either furnish some sterling uncontrovertible material or acceptable circumstances to substantiate his contention. He must make out a case that making him stand the trial would be abuse of the process of court. He cannot get the complaint quashed merely on the ground that apart from the basic averment no particulars are given in the complaint about his role, because ordinarily the basic averment would be sufficient to send him to trial and it could be argued that his further role could be brought out in the trial. Quashing of a complaint is a serious matter. Complaint cannot be quashed for the asking. For quashing of a complaint it must be shown that no offence is made out at all against the Director.”

16. Here in this case, as discussed herein above in paragraph No.12 of this judgment, the petitioners have not issued the cheques and they have tendered their resignation much before issuance of the said cheques. These are uncontrovertible facts. Only a bald averment is made in the complaint against them that they were responsible for day to day affairs of the company. There is no specific averment against them to show, as to how and in what manner the petitioners are responsible for the conduct of the business of the Company. Moreover, they were not the Managing Director of the Company. Therefore, I am unable to record concurrence with the submissions, so advanced by the learned counsel for the respondent. And the ratio laid down in the case, so referred by him, would also not come into his aid.

17. In the result, I find sufficient merit in this petition and accordingly, the same stands allowed. Consequently, Complaint Case No. 2845c/2018, filed under Sections 138/141 read with Section 142 of Negotiable Instruments Act, 1881, pending before the Court of the learned SDJM-II, Kamrup (Metro) qua the petitioners stands quashed.

18. Interim order if any, stands vacated. The parties have to bear their own cost.

Petition allowed.

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