NIACT 138 / 141, R/W

ghansham das (Querist) 18 October 2009 This query is : Resolved
DEAR ALL,
THERE IS QUESTION BY MR RAVI, 17 OCT,09.
FORM 32 SUBMITTED , GIVES RELIEF?
MY QUERRY-
*IS IT REASONABLE FOR COMPLAINANT TO KNOW BEFORE FILLING COMPLAINANT AGAINST THE CHAIR PERSON PRESENT ON CHAIR/ ?
*WHEN ROC WILL NOT REPLY WITH IN TWO WEEKS OF TIMES AS REQUIRED TO FILE CASE U/S 138 AFTER NOTICE IS SERVICED,?
*IS THE COURTS JUDGMENTS DRAW A LINE THAT CHAIRMAN/ DIRECTORS, BOARDS ARE NOT GUILTY?
IS THAT COURT IS NOT ABLE TO JUSTIFY THAT THE BENEFICIARY IS BELIVED TO HV FAITH IN SYSTEM, JUSTICE, NOT LINGERING PROCESS ENDLESSLY???
PLS CRALIFY..???
after going hro' jc scc it is felt that the court is merely passing some orders with out keeping in view that how the complainnat is suffering for justice, is over looked, after years after years, what the use of it, if the same money is paid after ten-twenty years????
gdgupta10@rediffmail.com

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Prakash Yedhula (Expert) 18 October 2009
Retiring from the board after the transaction/issuance of cheque and consequent filing of Form 32 would not absolve the person from the offence.

A director who is not at the helm of affairs when the subject cheque was issued alone is entitled to be discharged from the offence.

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H. S. Thukral (Expert) 19 October 2009
Dear Mr. Prakash, Kindly enlighten :

As per section 141 of NI Act a person incharge of affairs of a company is liable when offence is committed. Now the question which arises is when the offence is committed; when the cheque is issued or when payment is not received on issuance of notice. The section mentions not only directors but every person. It shall include manager also. Now when a cheque is issued and during its validity period if manager resigns or is no longer in service, he can not make payment on notice even if he so desires for the simnple reason that he does not have a say in the affairs of the orgnisation. There is no mensrea but inability in non payment of the demand on notice. Is he still liable for issuance of cheque? It can happen in case of post dated cheques as well as during the long validity period of instrument.