It was observed in the present matter that despite the legal position duly settled with number of judgments passed by the Supreme Court, the trend in complaints for dishonour of cheque against a Company that still prevails is – implead all directors, company secretaries etc. as accused, no matter whether they were actually involved in the offence.
The Delhi High Court making reference to several judgments in this regard as passed by the Supreme Court took note in the present matter that all the Metropolitan Magistrates (MMs) must carefully scrutinize all the complaint cases alleging offence of dishonour of cheque against the accused companies at the pre-summoning stage itself. It is to be ensured that notice is issued only against those directors or employees of the company who were incharge of and were responsible for the conduct of the business of the company. Vicarious liability on the part of a person must be pleaded and proved and not inferred. Hence, summons must be issued only after considering all the allegations and the materials placed on the record by the Complainant.
To ensure that innocent persons are not unnecessarily made to face the trial and to further ensure that MMs have a clear and complete picture of the persons arrayed as accused making them vicariously liable the Magistrate must seek copies of Form-32 from the Complainant to satisfy Courts on who were the directors of the accused Company at the time when offence was allegedly committed and also on the date of the filing of complaint case. The Court further went on to suggest that information in the below tabulated format must be annexed with the Complaint:
a. Name of the accused company
b. Particulars of the dishonoured cheque/cheques
• Person/ Company in whose favour cheque/ cheques were issued
• Drawer of the cheque/ cheques
• Date of issuance of cheque/ cheques
• Name of the drawer bank, its location
• Name of the drawee bank, its location
• Cheque No./Nos.
• Signatory of the cheque/ cheques
c. Reasons due to which the cheque/ cheques were dishonoured
d. Name and designation of the persons sought to be vicariously liable for the commission of the offence by the accused company and their exact role as to how and in what manner they were responsible for the commission of the alleged offence.
e. Particulars of the legal notice and status of its service
f. Particulars of reply to the legal notice, if any.
The above directions as issued have been put into place since 1st July 2013.
[Sudeep Jain vs. M/s. ECE Industries Ltd.]
(Delhi HC, 06.05.2013)