Mere “bald assertion” not to be made against Directors in case of dishonour of cheque

Supreme Court: While deciding as to whether mere “bald assertion” under Section 138 read with Section 141 of the Negotiable Instruments Act, 1881 that the directors were at the time when the offence was committed in charge of and responsible for the conduct and day-to-day business of the company is sufficient to maintain the said complaint, a bench of Ranjana P. Desai and N.V. Ramana, JJ ruled that company’s directors are personally liable to be prosecuted for a bounced cheque unless they furnish “incontrovertible evidence” that they had no role in issuing it.

In the instant case, on the default of repayment of the amount due by the accused company, the appellants filed a complaint in the Court of Chief Metropolitan Magistrate against the directors of the said company. Aggrieved with the order of the magistrate, the respondents moved to the High Court of Calcutta, which held that apart from making mere “bald assertion”, the complainant has as state as to what part was played by the directors and how they were responsible for the finances of the Company, issuance of cheques, and whether they has control over the funds of the company.

Gurukrishna Kumar, the counsel for the appellant, contended that High Court erred in quashing the proceeding as it is not incumbent upon the complainant to elaborate the role played by each of the directors in the complaint. The Court stated that if any director wants the process to be quashed by filing a petition under Section 482 of the CrPC on the ground that only a “bald assertion” is made in the complaint and that he or she is not concerned with the issuance of the cheque, he or she must furnish “sterling incontrovertible material” or “acceptable circumstances” to substantiate the contention and would have to make out a case that making him stand trial would be an abuse of the process of court. The Court upheld the appeal and remitted the matter to the High Court to hear the parties and consider the matter afresh. Gunmala Sales Pvt. Ltd. v. Anu Mehta, 2014 SCC OnLine SC 848, decided on October 17, 2014.

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