1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 2905 OF 2009 Ajay Krishnakant Parikh & Anr. ..Applicants versus Anand Jayant Dave & Anr. ..Respondents Mr. Prakash Naik for Applicants. Mr. Pratap Sampat with Mr. Vilas Jadhav for Respondent No. 1. Mr. D. R. More - APP for State. CORAM : S. A. BOBDE, J. DATED : 07TH AUGUST, 2009. P.C. : 1. Rule, returnable forthwith. Heard finally by consent of the parties. 2. The applicants have challenged the Order of the learned Sessions Court rejecting his Revision against the issue of process. Applicants are the accused in a case under Section 138 of the Negotiable Instruments Act. According to the applicants process could not have been issued in this case since the averments in the complaint do not comply with the requirements of Section 138 read with 141 of the Negotiable Instruments Act. Secondly, 2 according to the applicants, verification of the complainant’s statement is not in accordance with law and therefore issue of process is vitiated. 3. On the first question, namely, the existence of averments in compliance of Section 141 of the Negotiable Instruments Act, Mr. Naik the learned counsel for the applicants submitted that such averments are absent. In particular, according to Mr. Naik, Section 141 requires a specific averment that the accused were in charge of and responsible to the company at the time the offence was committed. According to Mr. Naik, offence is committed when the cheque is dishonoured and therefore there must be a specific everment that the accused was responsible to the company for its conduct when the cheque was dishonoured. 4. Mr. Sampat, the learned counsel for the respondent No. 1 relied on the averments in the complaint but submits that they satisfy the requirements of Section 141. Learned counsel for the respondent No.1 has referred to the averments in paragraphs 4, 9 and 13 to the following effect: “ 4 : .........The statutory records show Accused No. 2 to 5 as its directors.” “9. That the Accused No. 2, 3, 4 & 5 are directors of the said company M/s. UPA Pharmaceuticals Ltd. who 3 is Accused No.1 and all of them are responsible for the conduct of the business of the said Company and from time to time interacted with the Complainant to secure the extension of time for repayment of the said loan. The Accused No. 2 & 3 have signed the impugned cheque issued under the title and on behalf of the company M/s. UPA Pharmaceuticals Ltd., the Accused No.1 and Accused No. 4 & 5 have participated with Accused No. 2 & 3 in the conduct of the affairs of the firm and in seeking extension of the repayment of the loan give by the Complainant to their company. All the Accuseds were responsible at the time of taking the said loan and have utilised the said loan for the purpose of their business in the Accused No. 1 company and are parties responsible for the issue of the impugned dishonoured cheque.” “13. That as stated in Para 9(Nine) herein above the Accused No. 2 to 5 are constituent directors of their Accused No. 1 company and are responsible to conduct the business of the said company as stated herein and participated in the affairs of the company. Accordingly the Accused No. 1 to 5 are liable to discharge the debts of the said firm and accordingly liable to honour the abovementioned impugned cheque of Rs.40,00,000/- (Rupees Forty Lacs only) towards discharge of their debts of the Accused No. 1 company.” 5. On a plain reading of the aforesaid averments and particularly the 4 statement at the end of paragraph 9 (supra), I am of view that the complainant has clearly averred that the accused were responsible for the dishonoured cheque. The averment at the end of paragraph 9 is as follows: “All the accuseds were responsible at the time of taking the said loan and have utilised the said loan for the purpose of their business in the Accused No. 1 company and are parties responsible for the issue of the impugned dishonoured cheque.” 6. The complainant has clearly stated that the accused are responsible for the issue of the dishonoured cheque. This obviously implies without any doubt that they are responsible at the time of dishonour of the cheque. Mr. Naik, the learned counsel for the applicants however submitted that it was necessary for the complainant to have made the specific averment that the accused were responsible for the dishonour of the cheque at the time the cheque was dishonoured. The learned counsel relies on Section 141 of the Negotiable Instruments Act. It is not possible to accept this contention since the law does not expect the complainant to merely reproduce the words of the Section. This issue of pleadings adjudicated time and again before this court must be understood from the point of view that if the averments unambiguously state the requirements of Section 141, it is not necessary to insist on an actual reproduction of the words of the Section. The Supreme Court in the case of S.M.S. Pharmaceuticals Ltd. vs. Neeta Bhalla & 5 Anr. [(2007) 4 S.C.C. 70] has also observed that it is not necessary to produce the words of the Section. 7. This takes us to the second contention on behalf of the applicants. According to the applicants, while making verification, the complainant did not state on oath that the applicants were in charge of and responsible to the company for dishonour of the cheque at the time of commission of offence or words to that effect. 8. Mr. Sampat, the learned counsel for the respondent No.1 submitted that if the averments in the complaint are adequate then the verification must be also considered to be adequate because in the verification the complainant clearly stated that he relies on the averments in the complaint for the purposes of verification. In my opinion, it is not permissible for the complainant to merely state that he relies on the statement made in the complaint as a substitute for making material statements before the Court. This Court has already held in the case of Captain Lance Irwin Lobo vs. Ismail D’souza @ Angelo Ismail de Souzla and Anr. [(2007) ALL MR (Cri.) 623] that the complainant is bound to make a statement on oath as to how the offence was committed and how the accused persons are responsible therefore. In this view of the matter, the verification is defective and the process is accordingly set aside on that ground. The matter is 6 remanded back to the learned Magistrate for fresh verification in accordance with law. 9. Rule made absolute with the above directions. (S. A. BOBDE, J.)