TMI Blog2020 (9) TMI 1215X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner. It is seen from the paragraph No.7 of the complaint that except mentioning the magical word that the accused are incharge of the management and affairs of the company, there is nothing more - this Court finds that there is no factual averments to show how the petitioner is responsible for the business and conduct of A1 company to invoke provision under Section 141 of the Negotiable Instruments Act. Petition allowed. - Crl.O.P.No.3727 of 2017 And Crl.M.P.Nos.2746 & 2747 of 2017 - - - Dated:- 2-9-2020 - THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR For Petitioner : Mr.S.Ashok Kumar For Respondent : Mr.John Sathyan ORDER The petitioner, who is A3 in the private complaint in C.C.No.7117 of 1998 filed by the respondent, before the learned Fast Track Court No.III, Metropolitan Magistrate, Saidapet, for offence under Section 138 of the Negotiable Instruments Act. 2.The gist of the case is that M/s.Srivari Investments Private Limited subscribed debentures. The respondent purchased the debentures from M/s.Srivari Investments Private Limited and A1 stood as Guarantor for redemption and repurchase of the debentures by M/s.Srivari Investments Private Limited. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stries Corporation Limited Versus Harmeet Singh Paintal and another reported in (2010) 3 SCC 330. Anita Malhotra Versus Apparel Export Promotion Council and another reported in (2012) 1 SCC 520. Ashoke Mal Bafna Versus Upper India Steel Manufacturing and Engineering Company Limited reported in (2018) 14 SCC 202. State represented by DSP, SB CID, Chennai Versus K.V.Rajendran and others reported in (2008) 8 SCC 673. Anil Khadkiwala Versus State (Government of NCT of Delhi) and another reported in 2019 SCC OnLine SC 941. 5.It is further submitted that for prosecuting the Director of the company under Section 141 of the Negotiable Instruments Act, an authoritative pronouncements in the case of S.M.S Pharmaceuticals Limited (cited supra) was rendered by the Hon'ble Apex Court, which has been followed in the case of National Small Industries Corporation Limited (cited supra ) . In S.M.S Pharmaceuticals Limited (cited supra), the Hon'ble Supreme Court held that essential averment to be made in the complaint and it is necessary to aver that at the time the offence was committed the present accused was incharge of, and responsible for the conduct of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned counsel for the petitioner prayed to quash the proceedings against the petitioner. 10.The learned counsel for the respondent submitted that the complaint was filed in the year 1998, at that time, there was no such requirement as held in the case of S.M.S Pharmaceuticals (cited supra). Hence, in the complaint in paragraph No.7, except mentioning that the petitioner as Director of A1 company along with other Directors, no other averments made against the petitioner/A3. In this case, the cheque is dated 04.03.1998, the petitioner resigned from A1 company on 01.08.1998. The resolution for resignation of the petitioner was passed on 08.09.1998 and thereafter, the same was filed on 11.09.1998. The cheque was presented on 02.09.1998 and the same was returned on 03.09.1998. Coming to know about the return of cheque, the petitioner hurriedly resigned from A1 company and pre-dated his resignation and filed Form 32 to escape from the prosecution. 11.The petitioner is one of the Promotee Director along with the other accused. Hence, he cannot now claim that he was was not incharge of the affairs of A1 company. The points agitated by the petitioner are to be decided only du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... found that no allegations were contained in the complaint regarding the fact that the accused was a partner in charge of and was responsible to the firm for the conduct of business of the firm nor was there any allegation that the offence was made with the consent and connivance or that it was attributable to any neglect on the part of the accused. It was held that no case was made out against the accused who was a partner and the complaint was quashed. The latest in the line is the judgment of this Court in Monaben Ketanbhai Shah v. State of Gujarat [(2004) 7 SCC 15 : 2004 SCC (Cri) 1857] . It was observed as under: (SCC p. 17, para 4) 4. It is not necessary to reproduce the language of Section 141 verbatim in the complaint since the complaint is required to be read as a whole. If the substance of the allegations made in the complaint fulfil the requirements of Section 141, the complaint has to proceed and is required to be tried with. It is also true that in construing a complaint a hypertechnical approach should not be adopted so as to quash the same. The laudable object of preventing bouncing of cheques and sustaining the credibility of commercial transactions resulting ..... X X X X Extracts X X X X X X X X Extracts X X X X
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