- Get link
- Other Apps
- Get link
- Other Apps
Title of the Case:S.P. MANI AND MOHAN DAIRY Vs. DR. SNEHALATHA ELANGOVAN
Head Notes: The primary responsibility of the complainant is to make specific averments in the complaint so as to make the accused vicariously liable. For fastening the criminal liability, there is no legal requirement for the complainant to show that the accused partner of the firm was aware about each and every transaction. On the other hand, the first proviso to subsection (1) of Section 141 of the Act clearly lays down that if the accused is able to prove to the satisfaction of the Court that the offence was committed without his/her knowledge or he/she had exercised due diligence to prevent the commission of such offence, he/she will not be liable of punishment.
The complainant is supposed to know only generally
as to who were in charge of the affairs of the
company or firm, as the case may be. The other
administrative matters would be within the special.knowledge of the company or the firm and those
who are in charge of it. In such circumstances, the
complainant is expected to allege that the persons
named in the complaint are in charge of the affairs
of the company/firm. It is only the Directors of the
company or the partners of the firm, as the case
may be, who have the special knowledge about the
role they had played in the company or the partners
in a firm to show before the court that at the
relevant point of time they were not in charge of the
affairs of the company. Advertence to Sections 138
and Section 141 respectively of the NI Act shows
that on the other elements of an offence under
Section 138 being satisfied, the burden is on the
Board of Directors or the officers in charge of the
affairs of the company/partners of a firm to show
that they were not liable to be convicted. The
existence of any special circumstance that makes
them not liable is something that is peculiarly
within their knowledge and it is for them to
establish at the trial to show that at the relevant time they were not in charge of the affairs of the
company or the firm.
Needless to say, the final judgement and order would
depend on the evidence adduced. Criminal liability is
attracted only on those, who at the time of
commission of the offence, were in charge of and
were responsible for the conduct of the business of
the firm. But vicarious criminal liability can be
inferred against the partners of a firm when it is
specifically averred in the complaint about the status
of the partners ‘qua’ the firm. This would make them
liable to face the prosecution but it does not lead to
automatic conviction. Hence, they are not adversely
prejudiced if they are eventually found to be not
guilty, as a necessary consequence thereof would be
acquittal.
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/she is really not concerned
with the issuance of the cheque, he/she must in order to persuade the High Court to quash the
process either furnish some sterling incontrovertible
material or acceptable circumstances to substantiate
his/her contention. He/she must make out a case
that making him/her stand the trial would be an
abuse of process of Court