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TMI Blog2020 (12) TMI 999X X X X Extracts X X X X X X X X Extracts X X X X ..... e. 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. Admittedly, the petitioner is not a signatory to the cheque in issue. Petition allowed - decided in favor of petitioner. - Crl.O.P.No.9503 of 2015 - - - Dated:- 17-9-2020 - THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR For the Petitioner : Mr.R.Nalliyappan For the Respondent : Mr.A.Ashwin Kumar, Legal Aid Counsel ORDER The petitioner/A2 who is facing trial in C.C.No.254 of 2015 for offence under Sections 138 r/w 141 and 142 of the Negotiable Instruments Act, 1881, pending on the file of the Judicial Magistrate Court No.I, Tirupur, has filed this quash petition. 2.Despite serving of notice to the respondent and his name being printed in the cause list, no representation for him. Hence, this Court by order dated 31.08.2020, appointed Mr.A.Ashwin Kumar as Legal Aid Counsel for the respondent. 3.The gist of the case is that A1 company viz., M/s.Nitsun Garments Private Limited, Tirupur was indulging in the business of manufacturing garments and exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the complaint which need to be indicated in the complaint are how, in what manner, the role, description and specific allegation as to the part played by a person before she could be made as accused. In this case, there is no description as to how the petitioner acted on behalf of A1 company. 8.It is further submitted that it is necessary to specifically aver in a complaint under Section 141 of the Negotiable Instruments Act that at the time the offence, the person accused was in charge of, and responsible for the conduct of business of the company. This averment is an essential requirement to attract Section 141 of the Negotiable Instruments Act. Without any such averment in the complaint, the requirements of Section 141 of the Negotiable Instruments Act cannot be said to be satisfied. 9.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 reported in (2005) 8 SCC 89 was rendered by the Hon'ble Apex Court that essential averment to be made in the complaint and it is necessary to aver that at the time the offence was c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mplaint under Section 138 of the Negotiable Instruments Act. Further, it is not necessary upon the respondent to elaborate in the complaint the role played by each of the Directors in the transaction forming the subject matter of the complaint. In the present case, the petitioner/A3 and A2 were the Director and Managing Director respectively of A1 company at the time when the offence committed and were in charge and responsible for the conduct and day to day business of A1 company. Hence, the learned Judicial Magistrate No.I, Tirupur has rightly taken cognizance of the complaint, which cannot be quashed by invoking Section 482 Cr.P.C by this Court and it is a matter for trial. Thus, the points agitated by the petitioner are to be decided only during the trial. 13.In support of his contention, reliance was placed on the Judgment of the Hon'ble Supreme Court in the case of Gunmala Sales Private Limited Versus Anu Mehta and Ors. reported in 2015 1 SCC 103 . 14.This Court considered the rival submissions and perused the materials available on record. 15.It is not in dispute that the petitioner/A3 is the Director of A1 company. In order to discharge the liability, the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 in enactment of Sections 138 and 141 has to be borne in mind. These provisions create a statutory presumption of dishonesty, exposing a person to criminal liability if payment is not made within the statutory period even after issue of notice. It is also true that the power of quashing is required to be exercised very sparingly and where, read as a whole, factual foundation for the offence has been laid in the complaint, it should not be quashed. All the same, it is also to be remembered that it is the duty of the court to discharge the accused if taking everything stated in the complaint as correct and construing the allegations made therein liberally in favour of the complainant, the ingredients of the offence are altogether lacking. The present case falls in this category as would be evident from the facts noticed hereinafter. It was further observed: (SCC pp. 18-19, para 6) 6. The criminal liability has been fastened on tho ..... X X X X Extracts X X X X X X X X Extracts X X X X
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