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TMI Blog2021 (6) TMI 438X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioners submitted as follows. First, the petitioners were neither signatories to the cheque nor parties to the agreements in question. Secondly, there were incomplete averments in the petition of complaint so far as the roles of the present petitioners were concerned. In the petition of complaint it was merely averred that all the accused were the partners at the accused partnership firm looking after its day to day business affairs and responsible for each and every business conduct at the relevant time when the offence was committed. However, this fell sort of the specific averments about the role of the accused that had to be made in a petition of complaint as per the ratio of the Hon'ble Apex Court as laid down in S.M.S. Pharmaceuticals Limited vs. Neeta Bhalla & Anr., (2005) 8 SCC 89. Merely being a partner in a firm would not make the petitioners accused in this case. On this, reliance was further placed on the decisions of the Hon'ble Apex Court in National Small Industries Corporation Limited vs. Harmeet Singh Paintal & Anr., (2010) 3 SCC 330, Pooja Ravindra Devidasani vs. State of Maharashtra, (2014) 16 SCC 1 and Saroj Kumar Poddar vs. State (NCT of Delhi) & Anr., 200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ka High Court in Babu Rao Chinchasur vs. Anjana Shathaveer in Criminal Petition No. 7269 of 2015 and of the Hon'ble Gujarat High Court in Vir Retail Pvt. Ltd. vs. State of Gujarat & Anr., 2014 ACD 537 (GUJ). In view of these, the impugned proceeding ought to be quashed so far as the present petitioners were concerned. 4. Learned counsel appearing on behalf of the complainant/opposite party no. 2 submitted as follows. The case arose out of the dishonour of a cheque for a sum of Rs. 3 Crores issued by the accused towards part discharge of their liability to the complainant company. There was a clear averment made at paragraph 3 of the petition of complaint that all the accused including the present petitioners were partners of the said firm and were looking after its day-to-day business for each and every business conduct at the relevant time when the offence was committed. As such, it satisfied the requirement of the decisions of the Hon'ble Apex Court that in order to arraign the directors of an accused company or the partners of an accused firm as accused in a case for dishonour of a cheque, it had to be averred that the said persons were in charge of and responsible for the conc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... andas Purshottamdas Thakur vs. Ratilal Motilal Patel, (1968) 1 SCC 455 and Commissioner of Income Tax vs. Thana Electricity Supply Limited, (1993) SCC OnLine Bom 591. The decisions relied upon by the petitioner in Udai Shankar Awasthi (supra), Abhijit Pawar (supra), National Bank of Oman (supra) had all been considered in S.S. Binu (supra). So far as the ratio laid down in the case of K.T. Joseph was concerned, there was nothing to indicate its applicability to a proceeding under the Negotiable Instruments Act. Similarly, the decision in Birla Corporation Ltd. (supra) was also distinguishable on facts as the same concerned Penal Code offences. The decision in K.S. Joseph (supra) too did not pronounce as to whether Section 202 of the Code was mandatory or not. Being partners of the accused firm, in charge of and responsible its business at the material point, the petitioners would have to face the impugned proceeding under Section 138 read with Section 141 of the Negotiable Instruments Act. 5. I heard the submissions of the learned counsels appearing on behalf of the accused petitioners and the complainant/opposite party no.2 and perused the revision petition, the affidavits and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the office they hold as managing director or joint managing director, these persons are in charge of and responsible for the conduct of business of the company. Therefore, they get covered under Section 141. So far as the signatory of a cheque which is dishonoured is concerned, he is clearly responsible for the incriminating act and will be covered under sub-section (2) of Section 141." 9. However, it has also been made sufficiently clear by the Hon'ble Supreme Court in A.K. Singhania (supra) that no specific form of the required averments is prescribed. There is no necessity to reproduce the exact words 'in charge of' and 'responsible to'. Actually, it has to be seen whether in the facts of a particular case, sufficient averments of facts were made in the petition of complaint so as to warrant arraignment of the partners, being in charge of or responsible to the firm, as accused in a proceeding against a partnership firm. 10. In this regard, the expression used in SMS Pharmaceuticals Ltd. Case (supra) at para 19(b) that "This has to be averred as a fact.........." assumes immense significance. 11. It is evidently pertinent to refer to the relevant portions of the decision i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition of complaint so as to arraign the present petitioners as accused in this case. Compliance of Section 202 of the Code of Criminal Procedure: 14. It appears that no enquiry, in clear terms, was undertaken by the learned Trial Court as per the amended provision of Section 202 of the Code despite the fact that the accused petitioners were admittedly staying beyond the territorial jurisdiction of the learned Trial Court. 15. The question whether Section 202 of the Code is mandatory in respect of a proceeding under Section 138 of the Negotiable Instruments Act or not is now well settled. In Re: Expeditious trial of cases under Section 138 of N.I. Act, 1881, reported in 2021 SCC Online SC 325, a Constitution Bench of the Hon'ble Apex Court, inter alia, held as follows: "24. The upshot of the above discussion leads us to the following conclusions: ................ 2) Inquiry shall be conducted on receipt of complaints under Section 138 of the Act to arrive at sufficient grounds to proceed against the accused, when such accused resides beyond the territorial jurisdiction of the Court. 3) For the conduct of inquiry under Section 202 of the Code, evidence of witnesses on beha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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