TMI Blog2019 (2) TMI 544X X X X Extracts X X X X X X X X Extracts X X X X ..... ho are arrayed as accused were responsible to the company or firm for the conduct of the business. It is obvious that the purchase orders would be placed by either the company or firm or on its behalf by a director or officer or other employee. The fact that the invoices placed on record do not refer to the applicantsaccused does not take the case of the applicantsaccused any further. The challenge to the order of issuance of process must fail - the personal presence of the applicants – accused is exempted unless the trial Court, for reasons to be recorded, finds that the personal presence of the applicants – accused is absolutely necessary - Application rejected. - Criminal Application (APL) 136 of 2016 - - - Dated:- 8-2-2019 - ROHIT B. DEO, J. Shri R.P. Joshi, counsel for applicants. Shri A.H. Lohiya, counsel for non applicant. JUDGMENT This application, preferred under section 482 of the Criminal Procedure Code, 1973 (Code) is heard finally at the stage of admission with the consent of the parties. 2. The applicants who are arrayed as accused 3 and 4 in Criminal Complaint 1224 of 2015 are seeking quashment of the order dated 8.4.2015 of issuan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liable for the liabilities and dues of the accused 1 firm. Identical or similar assertions are reiterated in paragraphs 3 to 6 of the complaint. 6. In the context of the second submission canvassed by Shri R.P. Joshi, that there is unimpeachable and incontrovertible material on record to suggest that applicants partners are not involved or concerned in / with the transaction or issuance of the cheques which are dishonoured, it would be necessary to consider the additional affidavit sworn by applicant 1 Shivani (sic Shivangi) Tushar Garg alongwith which several tax invoices are placed on record. The additional affidavit states that the complainant has instituted summary suit 37 of 2015 before the Principal Bench of this Court in its original jurisdiction against the accused 1 firm in which the applicants are arrayed as defendants 3 and 4. In the said civil suit, the non applicant complainant has filed copies of invoices which would throw light on the persons who have placed the purchase orders. The endavour is to demonstrate that the invoices placed on record by the complainant in the summary suit prove that neither of the applicants herein have placed the purchase ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot necessarily confirm to or mechanically reproduce the language of section 141 of the Act, it would impermissible for the Court to take cognizance of the complaint. The very sine qua non for issuance of process is that the complaint, holistically read and understood, must aver that the directors or partners who are arrayed as accused were responsible to the company or firm for the conduct of the business. 9. The leading judgment of the Hon ble Apex Court in S.M.S. Pharmaceuticals Ltd ..vs.. Neeta Bhalla, (2005)8 SCC 89 was answering a reference made by a two Judge Bench. The questions which fell for determination by the three Judge Bench were thus: (a) Whether for purposes of Section 141 of the Negotiable Instruments Act, 1881, it is sufficient if the substance of the allegation read as a whole fulfil the requirements of the said section and it is not necessary to specifically state in the complaint that the person accused was in charge of, or responsible for, the conduct of the business of the company?. (b) Whether a director of a company would be deemed to be in charge of, and responsible to, the company for conduct of the business of the company and, therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aceuticals Ltd ..vs.. Neeta Bhalla . In Gunmala Sales Private Limited and others..vs..Navkar Infra Projects Private Limited and others, (2015)1 SCC 103, the two Judge Bench of the Hon ble Apex Court exhaustively considered the earlier decisions including S.M.S. Pharmaceuticals Ltd ..vs.. Neeta Bhalla. In Gunmala Sales Private Limited and others..vs..Navkar Infra Projects Private Limited and others, the Hon ble Apex Court, while noting that a slightly different view was taken in N. Rangchari ..vs.. BSNL, (2007)5 SCC 108 , held that the three Judge Bench in S.M.S. Pharmaceuticals Ltd ..vs.. Neeta Bhalla holds the field. In Gunmala Sales Private Limited and others..vs..Navkar Infra Projects Private Limited and others, while enunciating that the averment that the partners were in charge of and were responsible for the conduct of the business of the firm is a basic requirement which persuades the Magistrate to issue process against the partners, the Hon ble Apex Court posed the question whether the High Court must dismiss the petition under section 482 of the Code as a rule if it is found that the complaint does incorporate the basic averments. The question i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issuance of cheque for a variety of reasons. It is for the High Court to consider these submissions. The High Court may in a given case on an overall reading of a complaint and having come across some unimpeachable evidence or glaring circumstances come to a conclusion that the petition deserves to be allowed despite the presence of the basic averment. That is the reason why in some cases, after referring to SMS Pharma (1), but considering overall circumstances of the case, this Court has found that the basic averment was insufficient, that something more was needed and has quashed the complaint. 30. When a petition is filed for quashing the process, in a given case, on an overall reading of the complaint, the High Court may find that the basic averment is sufficient, that it makes out a case against the Director; that there is nothing to suggest that the substratum of the allegation against the Director is destroyed rendering the basic averment insufficient and that since offence is made out against him, his further role can be brought out in the trial. In another case, the High Court may quash the complaint despite the basic averment. It may come across some unimpeachable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l out a clear case against the person sought to be made liable by aid of Section 141 of the Negotiable Instruments Act as it is imperative for the complainant to indicate, such person falls within the parameters of Section 141 of the Negotiable Instruments Act. Even if, it is stated in the complaint that the petitioner was a Director, however, that will not suffice as the record illustrates the petitioner was not a Director of the company nor incharge for the day to day affairs of accused company. In paragraph 11 of the complaint it was stated, accused nos.2 to 6 personally approached the complainant company for appointment of the complainant company as exclusive financial advisor of accused no.1 and gave assurance of payment against the services to be rendered by the Complainant. The Accused nos.2 to 6 were personally interacting with the complainant company from time to time. The accused nos. 2 to 6 were looking after the functioning of Accused no.1 when the Accused approached Complainant for advisory services, when the cheques in question were issued. These averments should have been supported with linkage of corresponding documents chaining personal involvement of petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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