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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 ..... ents of facts were made in the instant petition of complaint so as to arraign the present petitioners as accused in this case. Compliance of Section 202 of the Code of Criminal Procedure - HELD THAT:- 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. As the law requires that an enquiry be held under Section 202 of the Code if the accused stayed outside the Court s jurisdiction, such enquiry has to be undertaken in clear terms and the Learned Trial Court, after making such enquiry whether by taking evidence on affidavit or by restricting the enquiry to examination of documents or not, is required to decide whether there are sufficient grounds to issue process against the accused - the order issuing process and the subsequent orders passed by the learned Trial Court in the present case ought to be set aside and the matter remanded back so that the learned Trial Court can proceed afresh from the stage of enquiry under Section 202 of the Code. Since no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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., 2007 Cr.L.J. 1419. On this point, reliance was also placed on the decisions of the Hon ble Delhi High Court in Shivam Minerals Limited vs. State, AIR Online 2019 DEL 1257, Shyam Narayan Mishra Ors. vs. State, 2014 (1) ADR 750, the Hon ble Calcutta High Court in Srabonti Ganguli vs. IDBI, 2014 ACD 629 (Cal), the Hon ble Chhattisgarh High Court in Gita Singh Ors. vs. Jaiprakash, CDJ 2019 CH 8C100, the Hon ble Jharkhand High Court in Puranmal Agarwal Ors. vs. State of Jharkhand Anr. in CRMP No. 804 of 2012, the Hon ble Gujarat High Court in Anil Kumar vs. Abhisekh Enterprise Anr., 2018 ACD 121 (Guj) and the Hon ble Kerala High Court in P. Rajagopalan vs. P.C. Jose Anr., 2017 ACD 59 (KER). Lastly, it was contended that there was complete non-compliance of Section 202 of the Code inasmuch as no enquiry was undertaken despite the fact that the accused petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 concerned for the day-to-day running of its business. There were no magic words which were to be used in showing the involvement of the partners or directors. In the facts of the present case, sufficient averments were made in the petition of complaint to warrant the addition of the petitioners as accused. Looking after its day-to-day business affairs was equivalent to the phrase in charge of . On the point that no magic words were required for satisfying the requirement, reliance was placed on the decisions of the Hon ble Apex Court in K.P.G. Nair vs. Jindal Menthol India Limited (2001) 10 SCC 218, Monaben Ketanbhai Shah vs. State of Gujarat (2004) 7 SCC 15. On the question that averments made in the petition of complaint in the present case constituted requisite averments, reliance was placed on the decisions of the Hon ble Apex Court in Paresh P. Rajda vs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt, 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 the written notes filed. 6. First, it is an admitted position that the petitioners were not the signatories to the cheque in question. However, they were the partners in the co-accused partnership firm. Whether the averments made in the petition of complaint are sufficient to arraign the present petitioners as accused: 7. It is trite law that merely being a partner in a firm would not make the petitioners accused in a case for dishonour of cheque issued by the said firm. In view of the decision of the Hon ble Apex Court in SMS Pharmaceuticals Limited (supra) and the subsequent decisions pronounced in this regard, necessary averments are to be made in the petition of complaint that the petitioners were in charge of and responsible to the concerned artificial entity for the daily running of its business. 8. In SMS Pharmaceuticals Case (supra), a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eing 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 in A.K. Singhania s Case (supra), as quoted below- 14. From a plain reading of the aforesaid provision it is evident that every person who at the time the offence was committed was in charge of and responsible to the company shall be deemed to be guilty of the offence under Section 138 of the Act. In the face of it, will it be necessary to specifically state in the complaint that the person accused was in charge of and responsible for the conduct of the business of the company? In our opinion, in the case of offence by the company, to bring its Directors within the mischief of Section 138 of the Act, it shall be necessary to allege that they were in charge of and responsible to the conduct of the business of the company. It is a necessary ingredient which would be sufficient to proceed against such Directors. However, we m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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 behalf of the complainant shall be permitted to be taken on affidavit. In suitable cases, the Magistrate can restrict the inquiry to examination of documents without insisting for examination of witnesses. ................... 16. Therefore, as the law requires that an enquiry be held under Section 202 of the Code if the accused stayed outside the Court s jurisdiction, such enquiry has to be undertaken in clear terms and the Learned Trial Court, after making such enquiry whether by taking evidence on affidavit or by restricting the enquiry to examination of documents or not, is required to decide whether there are sufficient grounds to issue process against the accused. In the present case, the learned Trial Court did not do so. In view of the same, the order issuing process and the subsequent orders pass ..... X X X X Extracts X X X X X X X X Extracts X X X X
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