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DIRECTORS OF THE COMPANY CANNOT BE PROCEEDED WITH UNLESS THERE IS SOME SPECIFIC AVERMENT IN THE COMPLAINT ABOUT THEIR BEING RESPONSIBLE FOR THE DAY TO DAY AFFAIRS

Apex Court reported in 2007 AIR SCW 1880 : 2007 (3) AIR Kar R 247 to contend that when there is no material to show that the director of the company had a role to play, he cannot- be made liable under Section 141 of the Negotiable Instruments Act.
ILR 2002 Kant 475 : 2002 AIR - Kant HCR 544 and this decision is to the effect that all the Directors of the Company cannot be proceeded with unless there is some specific averment in the complaint about their being responsible for the day to day affairs.
In the case of N.K. Wahi v. Shekhar Singh and Ors. 2007 AIR SCW 1880 : 2007 (3) AIR Kar R 247 dealing with the case under the Negotiable Instruments Act, 1881, the Apex Court has held that where it was found on facts that the Director had resigned from the Directorship of the Company before the date of the cheaue being issued and before depositing of the cheque by the drawee and where there was no averment in the complaint as to, how and in what manner the Director was responsible for the conduct of the business of the company or otherwise responsible to it in regard to its functioning, the question of proceeding with against the said Director therefore, will not arise and consequently the Court quashed the proceedings as against the Director of the Company in the said case. This Court in the case of Sanjay G. Revankar v. State by Drug Inspector, Uttar Karnataka District, Karwar has observed that unless there is specific averment in the complaint about the Director of the Company being responsible for day-to-day affairs, the Director therefore cannot be proceeded with. The Court also: observed that where the complaint did not make any specific averment about the role of each of the Directors except baldly stating in the complaint that the Directors of the Company are also responsible for day-to-day affairs of the firm or company, the question of the Directors being proceeded with the case will not arise.

OFFENCES COMMITTED BY A PARTY TO A PROCEEDING IN THAT COURT

In the decision in Raghunath and Others v. State of U.P. and Others AIR 1973 SC 1100, (1973) 1 SCC 564 it is observed : "In this Court the main contention raised on behalf of the appellants by their learned counsel was that even prosecution for an offence under Section 465 I.P.C. requires complaint by the revenue court concerned as such an offence is covered by Section 195(1)(c), Cr.P.C. This contention is difficult to accept. …….. The offences about which the court alone, to the exclusion of the aggrieved private parties, is clothed with the right to complain may, therefore, be appropriately considered; to be only those offences committed by a party to a proceeding in that court, the commission of which has a reasonably close nexus with the proceedings in that court so that it can, without embarking upon a completely independent and fresh inquiry, satisfactorily consider by reference principally to its records the expediency of prosecuting the delinquent party. It, therefore, appears to us to be more appropriate to adopt the strict construction of confining the prohibition contained in Section 195(1)(c) only to those cases in which the offences specified therein were committed by a party to the proceeding in the character as such party." this Court then referred to Sections 476, 476A and 476B. Cr.P.C. and observed: All these sections read together indicate that the legislature could not have intended to extend the prohibition contained in Section 195(1)(c), Cr.P.C. to the offences mentioned therein when committed by a party to a proceeding in that court prior to his becoming such party. It is no doubt true that quite often if not almost invariably - the documents are forged for being used or produced in evidence in court before the proceedings are started. But that in our opinion cannot be the controlling factor, because to adopt that construction, documents forged long before the commencement of a proceeding in which they may happen to be actually used or produced in evidence, years later by some other party would also be subject to Sections 195 and 476, Cr.P.C. This in our opinion would unreasonably restrict the right possessed by a person and recognized by Section 190, Cr.P.C. without promoting the real purpose and object underlying these two sections. The Court in such a case may not be in a position to satisfactorily determine the question of expediency of making a complaint. It is thus clear that the factor of delay between the forgery and the production or use of the document in court had no direct bearing on the ratio.

Patel Laljibhai Somabhai v. The State of Gujarat [1971] 2 SCC 376 after considering the conflict of judicial opinion on this point, approved the view taken in Kushal Pal Singh case (supra). According to that decision the words "to have been committed by a party to any proceeding in any court" in Section 195(1)(c) mean that the offence should be alleged to have been committed by the party to the proceeding in his character as such party, that is, after having become a party to the proceeding.

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