PAWAN KUMAR GOEL versus STATE OF U. P. & ANOTHER

Citation: [2022] 10 S.C.R. 102 · Decided: 17-11-2022 · Supreme Court of India · Bench: KRISHNA MURARI · Disposal: Dismissed

Cited by 1 judgment(s) · cites 6 · see the full citation network in Lexace

Judgment (excerpt)

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SUPREME COURT REPORTS
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PAWAN KUMAR GOEL
v.
STATE OF U. P. & ANOTHER
(Criminal Appeal No. 1999 of 2022)
NOVEMBER 17, 2022
[KRISHNA MURARI AND BELA M. TRIVEDI, JJ.]
Negotiable Instrument Act, 1881 – ss. 138, 141, 142 – Whether
a director of a company would be liable for prosecution u/s. 138 of
NI Act without the company being arraigned as an accused – Held:
If the complainant fails to make specific averments against the
company in the complaint for the commission of an offence u/s. 138
of NI Act, the same cannot be rectified by taking recourse to general
principles of criminal jurisprudence – The provisions of s.141 impose
vicarious liability by deeming fiction which pre-supposes and
requires the commission of the offence by the company or firm –
Therefore, unless the company or firm has committed the offence as
a principal accused, the persons mentioned in sub-Section (1) and
(2) would not be liable to be convicted on the basis of the principles
of vicarious liablity.
Negotiable Instrument Act, 1881 – ss. 138, 141, 142 – Whether
a complaint u/s. 138 of NI Act would be liable to be proceeded
against the director of the company without their being any
averments in the complaint that the director arrayed as an accused
was in charge of and responsible for the conduct and business of
the company – Held: It is settled that vicarious liability of a person
for being prosecuted for an offence committed under the Act by a
company arises if at the material time he was in charge of and was
also responsible to the company for the conduct of its business –
Simply because a person is a director of a company, it does not
necessarily mean that he fulfils both the above requirements so as
to make him liable – In the instant case, perusal of the averments
made in the complaint goes to show beyond a shadow of doubt that
there are no averments that respondent no. 2 (director of the
company), at the time when the offence was committed, was in charge
of, and was responsible to the company for the conduct of the
business of the company.
[2022] 10 S.C.R. 102
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Dismissing the appeals, the Court
HELD: 1. The description of the respondent-accused
contained in the complaint is that though the respondent-accused
was described as a Director of ROL, but the company itself was
not arrayed as a party in the complaint. A perusal of the averments
made in the complaint also goes to show beyond a shadow of doubt
that there are no averments that respondent no. 2, at the time
when the offence was committed, was in charge of, and was
responsible to the company for the conduct of the business of the
company. This Court has been firm with the stand that if the
complainant fails to make specific averments against the company
in the complaint for the commission of an offence under Section
138 of NI Act, the same cannot be rectified by taking recourse to
general principles of criminal jurisprudence. Needless to say, the
provisions of Section 141 impose vicarious liability by deeming
fiction which pre-supposes and requires the commission of the
offence by the company or firm. Therefore, unless the company
or firm has committed the offence as a principal accused, the
persons mentioned in sub-Section (1) and(2) would not be liable
to be convicted on the basis of the principles of vicarious Liablity.
[Paras 18 & 19][115-C-H]
2. Arguments advanced by counsel for the appellant that
an additional accused can be impleaded subsequent to the filing
of the complaint merits no consideration, once the limitation
prescribed for taking cognizance of the offence under Section
142 of NI Act has expired. More particularly, in view of the fact
that neither any effort was made by the petitioner at any stage of
the proceedings to arraign the company as an accused nor any
such circumstances or reason has been pointed out to enable the
Court to exercise the power conferred by proviso to Section 142,
to condone the delay for not making the complaint within the
prescribed period of limitation. [Para 23][119-E-G]
3. The three-Judge Bench also took note of the earlier
pronouncements of this Court in the case of State of Haryana Vs.
Brij Lal Mittal & Ors., wherein it was held that vicarious liability
of a person for being prosecuted for an offence committed under
the Act by a company arises if at the material time he was in
PAWAN KUMAR GOEL v. STATE OF U. P. & ANOTHER
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