I had gotten a company cheque from a builder which bounced. This company had 5 directors (mostly related including wife) and the MD had signed the check. I filed 138 but for some reason the lawyer did not include the other 4 directors at the time of filing in 2015 he only included the MD. I found out that there were many 138 cheque bounce cases files against company and almost all had named all 5 active directors at the time of cheque bouncing. Now it seems that there is a possibility that the MD might run to UK or may even go behind bars as the pressure is mounting. What I would like to know is can I now add/amend the 138 filing or is there any provision which exists so I can include the other 4 active directors also as I think that will give a bit of safety net even if the MD disappears.
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1. Yes you can add more directors as party to the case.
2. However do note that only those directors who manage day to day affairs of the company should be added as party to the case.
3. If you make sleeping directors as party to the case they may seek to expunge their name from the proceedings.
Section 141 (2) makes directors/officers responsible who may not be in charge of the conduct of the business of the company, but the offence was committed with their consent, connivance or due to their negligence provided specific averments are made in the complaint illustrating the manner in which they are guilty of consent, connivance and negligence.
2) in the present case complaint does not contain any averment regarding role of those directors. Hence you cannot make them liable now for offence under section 138 read with section 141 of NI act
Adding other accused persons is not an easy task as you will have to explain the omission of the 4 directors in the original complaint. You have to move an application for permission to add other 4 directors, which they can hotly contest in the court.
Section 141 of the N.I Act, states that if the person committing an offence under Section 138 is a Company, every director of such Company who was in charge of and responsible to that Company for conduct of its business shall also be deemed to be guilty. The reason for creating vicarious liability is plainly that a juristic entity i.e. a Company would be run by living persons who are in charge of its affairs and who guide the actions of that Company and if such juristic entity is guilty, those who were so responsible for its affairs and who guided actions of such juristic entity must be held responsible and ought to be proceeded against.
If any of the directors' contend that the offence was committed without their knowledge or that they had exercised due diligence to prevent such commission, it would be a matter of defence to be considered at the appropriate stage in the trial.
Therefore you may file a petition to implead other directors in the present private complaint, let the court decide about it after hearing both the sides.
