IN THE HIGH COURT AT CALCUTTA

Criminal Revisional Jurisdiction

APPELLATE SIDE

Present:

The Hon’ble Justice Shampa Dutt (Paul)

CRR 2625 of 2024

Sanjeeva Shukla @ Sanjiv Shukla

Vs

Neelanjana Sen

For the Petitioner : Mr. Sandipan Ganguly, Sr. Adv.

Ms. Priyanka Sarkar.

For the Opposite Party : None.

Judgement reserved on : 15.07.2026

Judgment delivered on : 17.07.2026

Shampa Dutt (Paul), J.:

1. The revisional application has been preferred praying for quashing

of the proceedings of Case No. C-2371 of 2021 under Sections

138/141 of the Negotiable Instruments Act, 1881 pending before

the Court of the Learned Judicial Magistrate, 2

nd

Court, Alipore.

2. The petitioner’s case is that he is one of the Directors of Accused

No. 1 Company, namely, Credforce Asia Limited. The petitioner has

been arraigned solely on account of his designation as a Director.

The complaint neither alleges that the petitioner was in charge of

and responsible for the conduct of the business of the Company at

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the relevant time nor attributes any role to him in the transaction

culminating in the dishonour of the cheque.

3. Learned senior counsel Mr. Ganguly has argued on behalf of the

petitioner on filing written notes that in the present case the

complainant has not satisfied the mandatory requirements under

Section 141 of the Negotiable Instruments Act, 1881.

4. It is further argued that Section 141 of the Negotiable Instruments

Act creates a legal fiction by extending vicarious criminal liability

to persons who have not personally committed the offence under

Section 138. Being a penal provision creating vicarious liability, it

is settled law that the provision must receive strict construction.

5. Mr. Ganguly further states that the sine qua non for invoking

Section 141(1) is a specific averment in the complaint that, at the

time of commission of the alleged offence, the accused was "in

charge of and responsible to the Company for the conduct of its

business." Mere designation as a Director does not satisfy the

statutory requirement.

6. It is further submitted that the expressions "was in charge of" and

"was responsible to the Company for the conduct of the business

of the Company" occurring in Section 141(1) cannot be read

disjunctively. The Legislature has consciously employed the

conjunctive word "and", making both requirements cumulative.

Unless the complaint specifically alleges that the accused fulfilled

both conditions at the relevant time, the statutory mandate of

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Section 141 remains unfulfilled and no vicarious criminal liability

can be fastened.

7. It is submitted that, it is now well settled that for launching a

prosecution against a Director under Sections 138 and 141 of the

Negotiable Instruments Act, the complaint must contain clear,

specific and unambiguous averments regarding the role played by

such Director in the affairs of the Company. The complainant is

required to plead how and in what manner the Director was in

charge of, and responsible for, the conduct of the business of the

Company. Every Director is not, by virtue of holding office, deemed

to be in charge of the affairs of the Company. In the absence of

such foundational pleadings, prosecution of a Director is legally

unsustainable.

8. Mr. Ganguly, in support of his argument submits that mere

designation as a Director is insufficient to attract vicarious

criminal liability under Section 141 of the Negotiable Instruments

Act and has relied upon the following judgments:-

(a) Ashok Shewakramani & Ors. Vs. State of Andhra Pradesh

& Anr. reported in (2023) 8 SCC 473.

(b) Siby Thomas V. Somany Ceramics Limited, reported in

(2024) 1 SCC 348.

(c) Rahul Tantia V. State of West Bengal, reported in 2023

SCC OnLine Cal 2618.

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9. It is stated that no specific role has been attributed to the

petitioner. Apart from describing the petitioner as a Director, the

complaint is completely silent regarding:-

(a) the role played by the petitioner in the affairs of the Company;

(b) his participation in the transaction in question;

(c) his involvement in the issuance or execution of the cheque;

(d) his responsibility for the dishonour of the cheque; or

(e) any overt act or omission attributable to him so as to attract

criminal liability.

10. It is stated that the complaint does not disclose that the petitioner

negotiated with the complainant, authorised the issuance of the

cheque, participated in the underlying transaction, or exercised

control over the business of the Company in relation to the

transaction in question. In the absence of any such allegations,

continuation of the criminal proceeding against the petitioner is

wholly unwarranted and as such the petitioner prays that the

proceedings in the complaint is liable to be quashed.

11. In spite of due service, the opposite party/complainant is not

being represented in the present case . The matter was then

heard in full.

12. In Pawan Kumar Goel v. State of U.P & Anr. reported in 2022

(16) SCALE, the Supreme Court held:-

“22. The observations made in the aforesaid

judgment is also a complete answer to the

arguments advanced by learned counsel for the

appellant that in the absence of any prohibition

under the NI Act, the amendment in the complaint is

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permissible and the impleadment of an additional

accused subsequent to filing of the complaint,

would not be barred. At this juncture, we may also

refer to the following observations made in the case

of N. Harihara Krishnan Vs. J. Thomas (Supra):-

27. By the nature of the offence under Section

138 of the Act, the first ingredient constituting the

offence is the fact that a person drew a cheque. The

identity of the drawer of the cheque is necessarily

required to be known to the complainant (payee)

and needs investigation and would not normally be

in dispute unless the person who is alleged to have

drawn a cheque disputes that very fact. The other

facts required to be proved for securing the

punishment of the person who drew a cheque that

eventually got dishonoured is that the payee of the

cheque did in fact comply with each one of the

steps contemplated under Section 138 of the Act

before initiating prosecution. Because it is already

held by this Court that failure to comply with any

one of the steps contemplated under Section

138 would not provide “cause of action for

prosecution”. Therefore, in the context of a

prosecution under Section 138, the concept of

taking cognizance of the offence but not the

offender is not appropriate. Unless the complaint

contains all the necessary factual allegations

constituting each of the ingredients of the offence

under Section 138, the Court cannot take

cognizance of the offence. Disclosure of the name of

the person drawing the cheque is one of the factual

allegations which a complaint is required to

contain. Otherwise in the absence of any authority

of law to investigate the offence under Section 138,

there would be no person against whom a court can

proceed. There cannot be a prosecution without an

accused. The offence under Section 138 is person

specific. Therefore, Parliament declared

under Section 142 that the provisions dealing with

taking cognizance contained in the CrPC should

give way to the procedure prescribed under Section

142. Hence the opening of non obstante clause

under Section 142. It must also be remembered

that Section 142 does not either contemplate a

report to the police or authorise the Court taking

cognizance to direct the police to investigate into the

complaint.

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31. The Bench answered the questions posed in

the reference as under:-

“19. (a) 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.

(b) The answer to question posed in sub-para (b)

has to be in negative. Merely being a director of a

company is not sufficient to make the person liable

under Section 141 of the Act. A director in a

company cannot be deemed to be in charge of and

responsible to the company for conduct of its

business. The requirement of Section 141 is that the

person sought to be made liable should be in

charge of and responsible for the conduct of the

business of the company at the relevant time. This

has to be averred as a fact as there is no deemed

liability of a director in such cases.

(c) The answer to question (c) has to be in

affirmative. The question notes that the Managing

Director or Joint Managing Director would be

admittedly in charge of the company and

responsible to the company for conduct of its

business. When that is so, holders of such positions

in a company become liable under Section 141 of

the Act. By virtue of the office they hold as

Managing Director or Joint Managing Director, these

persons are in charge of and responsible for the

conduct of business of the company. Therefore, they

get covered under Section 141. So far as signatory

of a cheque which is dishonoured is concerned, he

is clearly responsible for the incriminating act and

will be covered under sub- section (2) of Section

141.”

13. In Shaleen Khemani & Ors. Vs. The State of West Bengal &

Anr. reported in (2018) 1 C Cr. LR (Cal) 515, the Court held:-

“13. In view of the aforesaid discussion, I am

unable to accept the contentions of the learned

Counsel for the opposite party no. 2 that merely

because the petitioners were directors/additional

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directors of the company it has to be inferred that

they were in-charge of the affairs of the company. It

is also pertinent to note that specific overt acts of

the petitioners have also not been articulated in the

petition of complaint so as to establish the extent of

their involvement in the affairs of t he said

company.”

14. For launching a prosecution against the Directors of a Company

under Section 138 read with Section 141 of the NI Act, there has to

be a specific allegation in the complaint in regard to the part

played by them in the transaction in question. It is also laid down

that the allegations has to be clear and unambiguous showing that

the Directors were in charge of and responsible for the business of

the Company. This was done to discourage frivolous litigation and

to prevent abuse of the process of law.

15. It is trite law that in a petition of complaint, the complainant is

required to aver as to how and in what manner a director was in

charge of the business of the accused company and was

responsible for the conduct of the accused company’s busines s.

Every Director need not be and is not in fact, in charge of the

business of the accused company. In absence of the specific role

qua the participation of a director in the alleged transaction with

the complainant, no director can be implicated by virtue of Section

141 of the NI Act.

16. On perusal of the petition of complaint filed by the complainant

before the trial Court. It appears on careful perusal that the

company and its three directors have been made accused s in the

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present case. In their capacity as directors, a general statement

has been made by the complainant that these directors are

engaged in managing the day to day business and regular affairs of

the company, at all material point of time. No specific allegation

or any specific act has been attributed to the said accused

persons individually. It appears that even the allegation of the

cheque being issued has been stated as being issue d “by

accused persons”. The complainant has also stated that the

complainant reposed sufficient trust and faith o n the

representation of the accused persons and accepted the

cheque as good as cash. Nowhere in the petition of complaint

has the complainant stated as to which of the

directors/accused persons had signed the cheque.

17. The demand notice sent by the learned advocate of the

complainant was also sent to all the accused persons. As such it

appears that there is no specific allegation or averment in the

petition of complaint as to which of the accused persons had

signed the cheque and was thus responsible for the said

cheque being dishonoured. The complainant/opposite party also

did not appear before this Court in spite of being served which has

been recorded in the order dated 29.08.2025 in this case. As such

it appears that there is no specific averment against any of the

petitioners in the present case.

18. This Court relies upon the judgment of the Supreme Court: -

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(i) In Sunil Todi & Ors. V. State of Gujarat & Anr. reported in

2021(14) SCALE, wherein the Court held:-

“42. Section 141 of the NI Act stipulates that if a

company is alleged to have committed an offence

under Section 138, then every person who „was in

charge of, and responsible to, the company for the

conduct of the business of the company‟ shall also

be deemed guilty of the offence. The proviso

provides an exception if she proves that the offence

was committed without her knowledge or that she

had exercised due diligence. In Sunil Bharati

Mittal v. CBI, (2015) 4 SCC 609, a three judge

Bench of this Court observed that the general rule

is that criminal intent of a group of people who

undertake business can be imputed to the

Company but not the other way around. Only two

exceptions were provided to this general rule: (i)

when the individual has perpetuated the

commission of offence and there is sufficient

evidence on the active role of the individual; and (ii)

the statute expressly incorporates the principle of

vicarious liability. Justice Sikri writing for a three-

judge Bench observed:

“43. Thus, an individual who has perpetrated the

commission of an offence on behalf of a company

can be made an accused, along with the company,

if there is sufficient evidence of his active role

coupled with criminal intent. Second situation in

which he can be implicated is in those cases where

the statutory regime itself attracts the doctrine of

vicarious liability, by specifically incorporating such

a provision. 44. When the company is the offender,

vicarious liability of the Directors cannot be imputed

automatically, in the absence of any statutory

provision to this effect. One such example is Section

141 of the Negotiable Instruments Act, 1881. In

Aneeta Hada [Aneeta Hada v. Godfather Travels &

Tours (P) Ltd., (2012) 5 SCC 661 : (2012) 3 SCC

(Civ) 350 : (2012) 3 SCC (Cri) 241] , the Court noted

that if a group of persons that guide the business of

the company have the criminal intent, that would

be imputed to the body corporate and it is in this

backdrop, Section 141 of the Negotiable

Instruments Act has to be understood. Such a

position is, therefore, because of statutory

intendment making it a deeming fiction. Here also,

the principle of “alter ego”, was applied only in one

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direction, namely, where a group of persons that

guide the business had criminal intent, that is to be

imputed to the body corporate and not the vice

versa. Otherwise, there has to be a specific act

attributed to the Director or any other person

allegedly in control and management of the

company, to the effect that such a person was

responsible for the acts committed by or on behalf

of the company.”

44. The test to determine if the Managing Director

or a Director must be charged for the offence

committed by the Company is to determine if the

conditions in Section 141 of the NI Act have been

fulfilled i.e., whether the individual was in-charge

of and responsible for the affairs of the company

during the commission of the offence. However, the

determination of whether the conditions stipulated

in Section 141 of the MMDR Act have been fulfilled

is a matter of trial. There are sufficient averments in

the complaint to raise a prima facie case against

them. It is only at the trial that they could take

recourse to the proviso to Section 141 and not at the

stage of issuance of process.”

In the present case there is no sufficient

averments nor a prima facie case against the accused

persons.

(ii) In Sunita Palita vs M/s. Panchami Stone Quarry,

Criminal Appeal No…..of 2022 (arising out of SLP (Crl.)

No. 10396 of 2019) on 1 August, 2022, the Supreme

Court held:-

“36. The High Court rightly held that when a

complaint was filed against the Director of a

company, a specific averment that such person was

in charge of and responsible for the conduct of

business of the company was an essential

requirement of Section 141 of the NI Act. The High

Court also rightly held that merely being a Director

of the company is not sufficient to make the person

liable under Section 141 of the NI Act. The

requirement of Section 141 of the NI Act was that

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the person sought to be made liable should be in

charge of and responsible for the conduct of the

business of the company. This has to be averred as

a fact.

37. The High Court also rightly held that the

Managing Director or Joint Managing Director

would admittedly be in charge of the company and

responsible to the company for the conduct of its

business by virtue of the office they hold as

Managing Director or Joint Manging Director. These

persons are in charge of and responsible for the

conduct of the business of the company and they

get covered under Section 141 of the NI Act. A

signatory of a cheque is clearly liable under Section

138/141 of the NI Act.

41. There can be no doubt that in deciding a

Criminal Revisional Application under Section 482

of the Cr.P.C. for quashing a proceeding under

Section 138/141 of the NI Act, the laudable object

of preventing bouncing of cheques and sustaining

the credibility of commercial transactions resulting

in enactment of the said Sections has to be borne in

mind. The provisions of Section 138/141 of the NI

Act create a statutory presumption of dishonesty on

the part of the signatory of the cheque, and when

the cheque is issued on behalf of a company, also

those persons in charge of or responsible for the

company or the business of the company. Every

person connected with the company does not fall

within the ambit of Section 141 of the NI Act.

43. Liability depends on the role one plays in the

affairs of a company and not on designation or

status alone as held by this Court in S.M.S.

Pharmaceuticals Ltd. (supra). The materials on

record clearly show that these Appellants were

independent, non-executive Directors of the

company. As held by this Court in Pooja Ravinder

Devidasani v. State of Maharashtra and Anr.

(supra) a non-Executive Director is not involved in

the day-to-day affairs of the company or in the

running of its business. Such Director is in no way

responsible for the day-to-day running of the

Accused Company. Moreover, when a complaint is

filed against a Director of the company, who is not

the signatory of the dishonoured cheque, specific

averments have to be made in the pleadings to

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substantiate the contention in the complaint, that

such Director was in charge of and responsible for

conduct of the business of the Company or the

Company, unless such Director is the designated

Managing Director or Joint Managing Director who

would obviously be responsible for the company

and/or its business and affairs.

46. As held by this Court in National Small

Industries Corporation Ltd. v. Harmeet Singh

Paintal4 quoted with approval in the subsequent

decision of this Court in Pooja Ravinder Devidasani

v. State of Maharashtra and Anr. (supra) the

impleadment of all Directors of an Accused

Company on the basis of a statement that they are

in charge of and responsible for the conduct of the

business of the company, without anything more,

does not fulfil the requirements of Section 141 of the

NI Act.”

19. Thus, it is clear from the materials on record, that the statements

in the petition of complaint are only general in nature. It has

also not been stated as who/which of the accuseds signed the

cheque in this case. Disclosure of the name of the person

drawing the cheque is one of the factual allegations which a

complaint is required to contain (N. Harihara Krishnan vs. J.

Thomas, (2018) 13 SCC 663).

20. In Ashok Shewakramani & Ors. vs. State of Andhra Pradesh

& Anr. reported in 2023 INSC 692, the Court held:-

“19. Section 141 is an exception to the normal rule

that there cannot be any vicarious liability when it

comes to a penal provision. The vicarious liability is

attracted when the ingredients of sub-section 1 of

Section 141 are satisfied. The Section provides that

every person who at the time the offence was

committed was in charge of, and was responsible

to the Company for the conduct of business of the

company, as well as the company shall be deemed

to be guilty of the offence under Section 138 of the

NI Act. In the light of sub-section 1 of Section 141,

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we have perused the averments made in the

complaints subject matter of these three appeals.

The allegation in paragraph 1 of the complaints is

that the appellants are managing the company and

are busy with day to day affairs of the company. It

is further averred that they are also in charge of the

company and are jointly and severally liable for the

acts of the accused No.1 company. The requirement

of sub-section 1 of Section 141 of the NI Act is

something different and higher. Every person who

is sought to be roped in by virtue of sub-section 1 of

Section 141 NI Act must be a person who at the

time the offence was committed was in charge of

and was responsible to the company for the

conduct of the business of the company. Merely

because somebody is managing the affairs of the

company, per se, he does not become in charge of

the conduct of the business of the company or the

person responsible for the company for the conduct

of the business of the company. For example, in a

given case, a manager of a company may be

managing the business of the company. Only on the

ground that he is managing the business of the

company, he cannot be roped in based on sub-

section 1 of Section 141 of the NI Act. The second

allegation in the complaint is that the appellants

are busy with the day -to-day affairs of the

company. This is hardly relevant in the context of

subsection 1 of Section 141 of the NI Act. The

allegation that they are in charge of the company is

neither here nor there and by no stretch of the

imagination, on the basis of such averment, one

cannot conclude that the allegation of the second

respondent is that the appellants were al so

responsible to the company for the conduct of the

business. Only by saying that a person was in

charge of the company at the time when the offence

was committed is not sufficient to attract sub-

section 1 of Section 141 of the NI Act. Sub-section 1

of Section 141 reads thus:

"141. Offences by companies.- (1) If the

person committing an offence under section 138 is

a company, every person who, at the time the

offence was committed, was in charge of, and was

responsible to the company for the conduct of the

business of the company, as well as the company,

shall be deeded to be guilty of the offence and shall

be liable to be proceeded against and punished

accordingly:

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Provided that nothing contained in this sub-

section shall render any person liable to

punishment if he proves that the offence was

committed without his knowledge, or that he had

exercised all due diligence to prevent the

commission of such offence:

[Provided further that where a person is

nominated as a Director of a company by virtue of

his holding any office or employment in the Central

Government or State Government or a financial

corporation owned or controlled by the Central

Government or the State Government, as the case

may be, he shall not be liable for prosecution under

this Chapter.]"

20. On a plain reading, it is apparent that the

words "was in charge of" and "was responsible to

the company for the conduct of the business of the

company" cannot be read disjunctively and the

same ought be read conjunctively in view of use of

the word "and" in between.

21. Therefore, even by giving a liberal construction

to what is averred in paragraph 1 of the

complaints, we are unable to accept the submission

made by the learned counsel appearing for the

second respondent that these averment s

substantially comply with sub-section (1) of Section

141 of the NI Act.”

Herein the court has once again cleared the position

and the requirements under Section 141 of the N.I. Act.

21. From the petition of complaint it is clear that the requirements

under Section 141 of the Negotiable Instruments Act as laid down

by the Supreme Court in Pawan Kumar Goel v. State of U.P &

Anr. (Supra) (para 31) are totally absent in this case and allowing

the proceedings to continue in respect of the petitioner in such

circumstances, would clearly amount to abuse of the process of

law.

22. The revisional application being CRR 2625 of 2024 is allowed.

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23. The proceedings of Case No. C-2371 of 2021 under Sections

138/141 of the Negotiable Instruments Act, 1881 pending before

the Court of the Learned Judicial Magistrate, 2

nd

Court, Alipore, is

quashed, in respect of the petitioner namely Sanjeeva Shukla

@ Sanjiv Shukla.

24. All connected applications, if any, stands disposed of.

25. Interim order, if any, stands vacated.

26. Copy of this judgment be sent to the learned Trial Court for

necessary compliance.

27. Urgent certified website copy of this judgment, if applied for, be

supplied expeditiously after complying with all, necessary legal

formalities.

(Shampa Dutt (Paul), J.)