Ramrajsingh Vs. State
of M.P. & ANR.  INSC 755 (15 April 2009)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1103 OF 2003
Ramrajsingh ..Appellant Versus State of M.P. and Anr. ..Respondents
Dr. ARIJIT PASAYAT,
in this appeal is to the judgment of a learned Single Judge of the Madhya
Pradesh High Court, Indore Bench, dismissing the revision application filed by
the appellant questioning his conviction for an offence relating to Section 138
of the Negotiable Instruments Act, 1881 (in short the `Act').
No.2-complainant was dealing in the business of transportation. The appellant
was the General Manager of J.K. Utility Division of J.K. Synthetics Ltd.
whereas the absconding accused Anup Chaturvedi was the Finance Manager. Both
were working under the Managing Director Manoj Kumar Mathur. The non-applicant
and the co- accused Anup Chaturvedi placed order No.U/QMR/Coal 96028 dated
7.8.1996 with one Vinayak Coal Corporation. In pursuance of this order, the
coal was transported by Maruti Road Carrier, Indore which is owned by the
appellant. The transportation charges of Rs.9,45,000/- were paid through four
cheques. All the four cheques were given to the appellant by the co- accused.
per the information given by the co-accused to the appellant, the appellant
placed the cheques before the Bank for encashment but the same were dishonored.
All the cheques were issued on Bank of Rajasthan Branch Jhalawad. The cheques
were returned dishonoured with the endorsement of `Stop Payment'. On
28.11.1996, a registered notice was sent to the Company which was served by
"Registered Acknowledgment Due" on 6.12.1996. Even thereafter
payments were not made. Therefore, the complaint was filed by respondent No.2
against the appellant and co- accused Anup Chaturvedi and Manoj Mathur and the
case was proceeded against the appellant and absconding accused Anup
No.2 had stated in the complaint that appellant was working in the company. The
order of transportation was placed by him, the material was received by him and
the cheques were given to him by the appellant and co-accused Anup Chaturvedi.
Out of four cheques, the complaint in regard to the cheque amount of Rs.2,00,000/-
dated 12.9.1996 was not pressed because a separate complaint was filed for
dishonour of this cheque.
learned Judicial Magistrate, First Class, Indore, found the appellant guilty
and the appeal was dismissed by learned Additional Sessions Judge, Indore. Both
the courts found the appellant guilty. The appellant's stand was that he was
not in charge and responsible for the conduct of the business of the company
and, therefore, he should not have been held guilty. The cheques were not signed
by him and a notice under Section 138 proviso (b) of the Act was not given in
his name. The High Court did not accept the stand and dismissed the revision
counsel for the appellant submitted that there is no evidence that the
appellant was in charge and responsible for the conduct of the business of the
company. A notice was not given to him. There was no specific role attributed
to him in the complaint petition. Therefore, the conviction as recorded cannot
counsel for respondent No.2-complainant supported the judgment of the High
appears that the accused No.3 (Manoj Mathur) was discharged.
S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla and Anr. (2007(4) SCC 70) it was
inter-alia observed held as follows:
"16. Section 141
of the Act does not say that a Director of a company shall automatically be
vicariously liable for commission of an offence on behalf of the Company.
What is necessary is
that sufficient averments should be made to show that the person who is sought
to be proceeded against on the premise of his being vicariously liable for
commission of an offence by the Company must be in charge and shall also be
responsible to the Company for the conduct of its business.
xx xx xx 4
20. The liability of
a Director must be determined on the date on which the offence is committed.
Only because Respondent 1 herein was a party to a purported resolution dated
15-2-1995 by itself does not lead to an inference that she was actively associated
with the management of the affairs of the Company. This Court in this case has
categorically held that there may be a large number of Directors but some of
them may not associate themselves in the management of the day-to-day affairs
of the Company and, thus, are not responsible for the conduct of the business
of the Company. The averments must state that the person who is vicariously
liable for commission of the offence of the Company both was in charge of and
was responsible for the conduct of the business of the Company. Requirements
laid down therein must be read conjointly and not disjunctively.
When a legal fiction
is raised, the ingredients therefor must be satisfied.
N.K. Wahi v. Shekhar Singh and Ors. (2007 (9) SCC 481) it was observed as
"6. Chapter XVII
has been incorporated under the Act with effect from 1.4.1989. In certain
contingencies referred to under Section 138 of the Act on the cheques being
dishonored a new offence as such had been created. But to take care of the
offences purported to have been committed provisions of sub- section (1) to
Section 141 of the Act come into play. It reads as under:- "141 - Offence
by companies - (1) If the person committing an offence under section 138 is a
company, every person who, at the time the offence was committed, was in charge
of, and was responsible to, the company for the conduct of the business of the
company, as well as the company, 5 shall be deemed to be guilty of the offence
and shall be liable to be proceeded against and punished accordingly.
Provided that nothing
contained in this sub-section shall render any person liable to punishment if
he proves that the offence was committed without his knowledge, or that he had
exercised all due diligence to prevent the commission of such offence."
7. This provision
clearly shows that so far as the companies are concerned if any offence is
committed by it then every person who is a Director or employee of the company
is not liable. 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. Merely being
a Director of the company in the absence of above factors will not make him
8. To launch a
prosecution, therefore, against the alleged Directors there must be a specific
allegation in the complaint as to the part played by them in the transaction.
There should be clear and unambiguous allegation as to how the Directors are
incharge and responsible for the conduct of the business of the company. The
description should be clear. It is true that precise words from the provisions
of the Act need not be reproduced and the court can always come to a conclusion
in facts of each case. But still in the absence of any averment or specific
evidence the net result would be that complaint would not be entertainable.
9. Section 138 of the
Act reads as under:- "138. Dishonour of cheque for insufficiency, etc., of
funds in the account - Where any cheque drawn by a person on an account
maintained by him with a banker for 6 payment of any amount of money to
another persons from out of that account for the discharge, in whole or in
part, of any debt or other liability, is returned by the bank unpaid, either
because of the amount of money standing to the credit of that account is
insufficient to honour the cheque or that it exceeds the amount arranged to be
paid from that account by an arrangement made with that bank, such person shall
be deemed to have committed an offence and shall, without prejudice to any
other provisions of this Act, be punished with imprisonment for a term which
may be extended to two years, or with fine which may extend to twice the amount
of the cheque, or with both."
10. In order to bring
application of Section 138 the complaint must show:
1 That Cheque was
2. The same was
3. It was dishonored
4. A notice in terms
of the provisions was served on the person sought to be made liable;
5. Despite service of
notice, neither any payment was made nor other obligations, if any, were
complied with within fifteen days from the date of receipt of the notice.
141 of the Act in terms postulates constructive liability of the Directors of
the company or other persons responsible for its conduct or the business of the
xx xx xx
13. In S.M.S.
Pharmaceuticals Ltd. v. Neeta Bhalla and Another (2007 (4) SCC 70) it was,
inter-alia, held as follows:- "18. To sum up, there is almost unanimous
judicial opinion that necessary averments ought to be contained in a complaint
before a person can be subjected to criminal process. A liability under Section
141 of the Act is sought to be fastened vicariously on a person connected with
a company, the principal accused being the company itself. It is a departure
from the rule in criminal law against vicarious liability. A clear case should
be spelled out in the complaint against the person sought to be made liable.
Section 141of the Act contains the requirements for making a person liable
under the said provision. That the respondent falls within the parameters of
Section 141 has to be spelled out. A complaint has to be examined by the
Magistrate in the first instance on the basis of averments contained therein.
If the Magistrate is satisfied that there are averments which bring the case
within Section 141, he would issue the process. We have seen that merely being
described as a director in a company is not sufficient to satisfy the requirement
of Section 141. Even a non-director can be liable under Section 141 of the Act.
The averments in the complaint would also serve the purpose that the person
sought to be made liable would know what is the case which is alleged against
him. This will enable him to meet the case at the trial.
19. In view of the
above discussion, our answers to the questions posed in the reference are as
(a) 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. Without this
averment being made in a complaint, the requirements of Section 141 cannot be
said to be satisfied.
(b) The answer to
the question posed in sub-para (b) has to be in the negative. Merely being a
director of a company is not sufficient to make the person liable under Section
141 of the Act. A director in a company cannot be deemed to be in charge of and
responsible to the company for the conduct of its business. The requirement of
Section 141 is that 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.
(c) The answer to
Question (c) has to be in the affirmative. The question notes that the managing
director or joint managing director would be admittedly in charge of the
company and responsible to the company for the conduct of its business. When
that is so, holders of such positions in a company become liable under Section
141 of the Act. By virtue of the office they hold as managing director or joint
managing director, these persons are in charge of and responsible for the
conduct of business of the company. Therefore, they get covered under Section
141. So far as the signatory of a cheque which is dishonoured is concerned, he
is clearly responsible for the incriminating act and will be covered under
sub-section (2) of Section 141".
14. The matter was
again considered in Sabitha Ramamurthy and Anr. v. R.B.S. Channabasavaradhya
and Anr. (2006 (9) SCALE 212) and Saroj Kumar Poddar v. State (NCT of Delhi)
and Anr. (JT 2007 (2) SC 233). It was, inter -alia, held as follows:
raises a legal fiction. By reason of the said provision, a person although is
9 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. Before a person can be made vicariously
liable, strict compliance of the statutory requirements would be
11. When the factual
background of the present case is considered in the light of the principles
referred to in Neeta Bhalla and N.K. Wahi cases (supra), the inevitable
conclusion is that the appeal is bound to succeed.
The conviction as
recorded cannot be maintained. The appeal is allowed.
(Dr. ARIJIT PASAYAT)
(LOKESHWR SINGH PANTA)
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