VELLORE RAMAKRISHNAN Vs. BLUE OAK CONSTRUCTION PVT. LTD

JUDGEMENT

(1.) These five petitions are arising out of the five private complaints filed by the respondent - M/s. Blue Oak Construction Pvt. Ltd. seeking action under Section 138 of the Negotiable Instruments Act, 1881 ('the N.I. Act' for short). The petitioners are arrayed as accused nos.2, 4 & 5 respectively. Identical averments are made in all the petitions to the effect that accused no.1 ? M/s.Samruddhi Realty Ltd. is a Company registered under the Companies Act represented by its Managing Director, accused no.2 is the Chairman of accused no.1, accused no.3 is the whole time Director and accused nos.4 to 6 are its Directors.

(2.) The contention of learned counsel for the petitioners is that insofar as present petitioners/Directors are concerned, there are no averments whatsoever in the complaints that the petitioners were either responsible for the conduct of business of accused no.1-Company or they had any role to play in the transaction in question. In the said circumstances, the prosecution of the petitioners for the alleged offences under Section 138 of the Act is wholly illegal and abuse of the process of Court. In support of these contentions, learned counsel for the petitioners has placed reliance on the decision of the Hon'ble Supreme Court in S.M.S. Pharmaceuticals Ltd. vs. Neeta Bhalla and Anr. [AIR 2005 SC 3512] wherein at para 16 the Hon'ble Supreme Court has emphasized that it is necessary to specifically aver in a complaint under Section 141 that at the time the offence was committed, the person accused was in charge of, and responsible for the conduct of business of the company. This averment is an essential requirement of Section 141 and has to be made in a complaint. When this averment not being made in a complaint, the requirements of Section 141 cannot be said to be satisfied. Learned counsel has also referred to the decision of the Hon'ble Supreme Court in Pooja Ravinder Devidasani vs. State of Maharashtra [AIR 2015 SC 675] wherein at para 28 it is held as under:

(3.) With regard to sustainability of the prosecution against Chairman is concerned, learned counsel has placed reliance on the decision of this Court in Shamanur Shivashankarappa vs. India Sugars and Refineries Ltd. [2015 CriLJ 2316] wherein at para 31 it is observed as under: