Mrs. Sukarsh Azad and Another vs Lafarge Aggregates and Concrete India Private Ltd.

M.M.S. Bedi, J.—Heard.

I am of the opinion that the Respondent-complainant Company could not be heard at the time of final disposal of the petition for quashing on 10.09.2010.

Mr. Anand Chhibbar, Advocate, has been given a fair opportunity to argue the matter.

It has been vehemently contended by Mr. Chhibbar, that the Petitioner Mrs. Sukarsh Azad and Mrs. Sneh Lata Azad, have been whole time Directors of the Company M/s Ria Constructions Limited and that they are paid salary regularly from the account of the Company. In support of his contention, he has made a reference to Annexure A1, Annexure A2, containing Form No. 20-B u/s 159 of the Companies Act and Form No. 23AC, u/s 220 of the Companies Act, which have been filed with the Registrar of Companies.

After hearing Mr. Chhibbar, Advocate, for the applicant, I have reconsidered the judgment dated September 10, 2010, in context to the judgment in case N.K. Wahi v. Shekhar Singh and Ors 2007 (2) RCR 266 and para 9 of the complaint which has been filed by M/s Lafarge Aggregates and Concrete India Private Limited against M/s Ria Constructions Limited.

Para 9 of the complaint reads as follows:

That accused Nos. 2 to 4, being Directors are in charge of the accused No. 1, actively participating in the business of accused No. 1 and are responsible to accused No. 1, for the conduct of its business. Accused No. 2, is signatory of the cheque in question. After the receipt of notice all the accused were required to ensure that the cheque amount i.e., Rs. 2,50,000/-(Rupees Two Lacs Fifty Thousand Only) is paid to the complainant within 15 days of the receipt of notice. Failure on the part of accused Nos. 2 to 4 to do so establishes that the commission of offence is attributable to gross neglect on their part. Further, instructing the drawee bank to ''stop payment'' of the cheque issued to the complainant and failure of accused Nos. 2 to 4 to respond to the notice of demand issued by the complainant clearly shows that the offence has been committed with their consent and connivance.

A perusal of the above allegations indicate that the complainant has just levelled a fake allegation against the Petitioners (accused Nos. 3 & 4), in the complaint that they being Directors are responsible to the main accused Company for conduct of its business. It is admitted that they are not the signatories of the cheque in question. In the case N.V. Wahi (supra) it has specifically been laid down that every Director of the Company is not liable u/s 141 of the Negotiable Instruments Act. Only such person would be held liable if at the time when offence is committed, he was in-charge and was responsible to the Company for the conduct of the business of the Company as well as the Company. It has been specifically laid down that to launch the prosecution against the Directors, there must be a specific allegation in the complaint as to what part is played by them in the transaction. There should be clear and unambiguous allegation as to how the Directors were in-charge and responsible for the conduct of the business of the Company.

After hearing the counsel for the applicant, Mr. Chhibbar, I have not been able to satisfy myself that the averments in para 9 of the complaint fulfill the parameters laid down in case N.K. Wahi (supra). The application is, therefore, dismissed.