| Court: | Calcutta High Court |
| Head Notes: | Sheetal Amritlal Patil & Co Vs State of West Bengal & Ors Sub- Whether all directors/partners of a Company/ Partnership are liable in case of dishonour of a cheque issued by a Company/partnership or only directors/partners who were incharge of affairs of the Company/Partnership are liable. The Hon’ble Calcutta High Court in this case was dealing with a case where the appellant filed an application praying cancellation of proceeding in a complaint case u/s 138 of the Negotiable Instruments Act, 1881 on the pretext that the applicants were neither signatory to the agreement or the cheque and there was no averment in the petition that the applicants were incharge of the affairs of the partnership. The Calcutta high court after noting catena of judicial decisions in this regard following the decision of the Apex Court in the case of S.M.S. Pharmaceuticals Limited vs. Neeta Bhalla & Anr., (2005) 8 SCC 89 held that It is trite law that merely being a partner in a firm would not make the petitioners accused in a case for dishonour of cheque issued by the said firm and 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. Finally the court allowed the petition in view of Section 202 of the Code of Civil Procedure, 1908 as per which if the complainant stays out side the jurisdiction of the court then enquiry has to be made as per this Section and as this was not the matter was set aside to the trial court for making enquiry and passing fresh order expeditiously. This judgement thus reiterates the law regarding the liability of persons who are not in charge of affairs in relation to the cheque bouncing. Ramesh Patodia |
| Law: | Other Laws |
| Section(s): | Section 138 of NI Act, 1881 and Section 202 of the CPC 1908 |
| Counsel(s): | Counsels |
| Dowload Pdf File | Click here to download the file in pdf format |
| Uploaded By | CA Ramesh Patodia |
| Date of upload: | June 12, 2021 |
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