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Madhya Pradesh High Court · body

2007 DIGILAW 453 (MP)

RAVINDRA BHARATI v. S V ELECTRICALSLIMITED

2007-04-17

S.C.VYAS

body2007
Judgment ( 1. ) HEARD finally with consent of both the parties. This is a petition filed under Section 482 of Cr. PC for quashment of the proceedings of Criminal Case No. 1127/04 pending in the Court of CJM, Dewas against present petitioner Ravindra Bharati only on the ground that necessary averments have not been made in the complaint to show that present petitioner was either Managing Director or Deputy Managing Director or signatory of the cheque or the person who is in charge or responsible for the conduct of the business of the Company. ( 2. ) SHORT facts of the case are that respondent No. 1, S. V. Electricals limited filed a complainant before CJM, Dewas for the trial of the offence punishable under Section 138 of the Negotiable Instrument Act against respondent Nos. 2,3 and 4 as well as petitioner, on the allegation that a cheque amounting to Rs. 2,62,392/- was given by them to the complainant as consideration of the price amount of certain goods and it was promised that the amount of cheque will be paid by the bank on its presentation. The cheque was presented by the complainant in the branch of UTI Bank, Dewas which was returned by that bank on 17-4-04 to the complainant with an endorsement that sufficient fund is not available in the account of the Company. Thereafter a notice under Section 138 of the Negotiable Instrument Act was given by the complainant to the present petitioner and other respondents and when the amount was not paid during the period prescribed for this purpose, then complaint was filed. ( 3. ) IN this petition the order of registration of complaint against the present petitioner is under challenge, on the ground that present petitioner is only a Director of the Company and there is no averment in the whole of the complaint to the effect that he is the person who is in charge or responsible for the affairs of the Company or for conducting its business. It has also been submitted that present petitioner is neither the Managing Director or the Joint director of the Company nor he is the signatory of the cheque and therefore for want of necessary averments in the complaint, the prosecution against present petitioner is not sustainable. ( 4. It has also been submitted that present petitioner is neither the Managing Director or the Joint director of the Company nor he is the signatory of the cheque and therefore for want of necessary averments in the complaint, the prosecution against present petitioner is not sustainable. ( 4. ) I have heard the arguments advanced by both the parties and perused the record of the Trial Court. ( 5. ) LEARNED Counsel for the petitioner placed heavy reliance on the decision of Supreme Court given in the case of S. M. S. Pharmaceuticals Ltd. Vs. Neeta Bhalla and another [reported in AIR 2005 Supreme Court, Page 3512]. In that case, three questions were referred by a two Judges Bench to a Larger bench for determination. The first question was- " (a) Whether for purposes of Section 141 of the Negotiable instrument Act, 1881, it is sufficient if the substances of the allegation read as a whole fulfill the requirements of the said section and it is not necessary to specifically state in the complaint that the persons accused was in charge of, or responsible for the conduct of business of the Company. " ( 6. ) THIS question was answered by the three Judges Bench in the following way in Paragraph No. 20 of the decision:- " (a) It is necessary to specifically aver in the 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 requirement of Section 141 cannot be said to be satisfied. " ( 7. ) THEREFORE the law laid down by the Supreme Court in the above decision is quite clear and when in any complaint anyone is to be prosecuted being a person who is responsible for the conduct of the business of the company, then it is necessary to make averments in the complaint to the effect that he is so responsible for the conduct of the business of the Company and was in charge of the company at the time of commission of the offence. ( 8. ( 8. ) WHEN we examine the contents of the present complaint then it becomes crystal clear that in the whole of the complaint no such averment has been made anywhere. In Paragraph No. 2 of the complaint, only it has been stated that accused No. 1 is Starlite Components Limited, Nasik and accused nos. 2 and 3 are its Managers and this Company deals in electric lamp. There is nothing in this paragraph or in any other paragraph of the complaint to show that present petitioner was either Managing Director or Deputy Managing director or the person who is in charge and responsible for the conduct of the business of the Company and therefore as laid down by Supreme Court in the above stated case, present complaint is not maintainable against the present petitioner. ( 9. ) LEARNED Counsel for the respondents submitted that a letter has been written by the present petitioner to the complainant on 8-3-04, wherein it was promised that amount of that outstanding payment of Rs. 2,62,392/- would be paid in a short period. He submitted that this promise made by the present petitioner shows that he is in charge and responsible for the affairs of the Company and submitted that on the basis of this document the complaint is sustainable. ( 10. ) I do not agree with the arguments advanced by learned Counsel for the respondents and in view of the law laid down by Supreme Court. Unless there is averment as held by the Supreme Court, in the case of S. M. S. Pharmaceuticals Ltd. (supra), no one can be prosecuted under Section 138 of the Negotiable Instrument Act, with the help of Section 141 of the same Act. For the purpose of prosecution of a person under Section 141 of the Act, it is necessary that he should either be signatory of the cheque or Managing Director of the Company or Deputy Managing Director of the Company or should be in charge and responsible for the conduct of the business of the Company and there should be necessary averments in the complaint itself regarding all these facts. In absence of any such averments, one cannot be prosecuted. ( 11. ) THEREFORE, following the law laid down by the Supreme Court in the above stated case of S. M. S. Pharmaceuticals Ltd. (supra), the petition succeeds and is allowed. In absence of any such averments, one cannot be prosecuted. ( 11. ) THEREFORE, following the law laid down by the Supreme Court in the above stated case of S. M. S. Pharmaceuticals Ltd. (supra), the petition succeeds and is allowed. The prosecution against present petitioner being not sustainable in the eye of law is hereby quashed. The prosecution of other accused persons may continue. M. Cr. C. allowed.