1 mpt IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.2948 OF 2009 WITH CRIMINAL WRIT PETITION NO.2949 OF 2009 Mr.Azam Khan ... Applicants versus The State of Maharashtra & Anr... Respondents ... Mr. S.V. Marwadi i/b Shri S.P. Narkar for the petitioner Mr. Y.S.Shinde and Ms.S.V. Gajare APP for the State. CORAM : D.G. KARNIK, J. DATED : 2nd December 2009 P.C. 1. By these petitions, the accused no.2 and the accused no.3 challenge the order dated 20th June 2009 passed by the learned Addl. Chief Metropolitan Magistrate, 44th Court, Andheri, Mumbai issuing process against them for offences punishable u/s.238 of the Negotiable Instruments Act. 2. The petitioners are the directors of “M/s.One more thought Entertainment Pvt.Ltd” (for short ‘the company”) The company issued 2 two cheques, one for Rs.3,17,763/- and another for Rs.3,88,804/- to the complainant. The cheques when presented for payment were dishonored. Despite notice to the Company and the two accused, they failed to make the payment within the statutory period. The complainant therefore filed a complaint u/s.138 of the Negotiable Instruments Act. Process was issued by the Magistrate. The order of issuance of the process is impugned by these petitions. 3. Learned counsel for the petitioners submitted that merely by reason of the fact that petitioners were the directors, they cannot be charged. Proper averments setting out their liability are not found in the complaint and therefore issuance of process against them needs to be quashed. 4. In K.K. Ahuja Vs. V.K. Vora & Anr, the Supreme Court after examining its earlier decisions has explained the position regarding the liability of various officers of a company u/s.141 of the Negotiable Instruments Act. Sub-paragraph no.(iii) of paragraph no.20 is material and reads thus:- (iii) In the case of a Director, Secretary or Manager (as defined in Sec.2(24) of the Companies Act) or a person referred to in clauses (e) and (f) of section 5 of Companies Act, an averment in the complaint that he was in charge of, and was responsible to the company, for the conduct of the business of the company is necessary to bring the case under section 141(1). No further averment would be necessary in the 3 complaint, though some particulars will be desirable. They can also be made liable under section 141(2) by making necessary averments relating to consent and connivance or negligence in the complaint to bring the matter under that sub-section." 5. The Supreme Court has held that in case of a director it is necessary for the complainant to make an averment that he was in charge of and responsible to the company for the conduct of the business of the company so as to bring the case u/s.141 (1). No further averments are necessary though some particulars are desirable. 6. In the present case, in paragraph no.2 of the complaint, complainant has specifically averred that the accused nos.2 and 3 are the directors of accused no.1 and are responsible for day to day affairs of the said company. Thus, there is an averment regarding the liability of the petitioners as directors in charge of the affairs of the company. In my view, the case is covered by sub-para(iii) of paragraph no.20 of the decision of the Supreme Court in the case of K.K. Ahuja (supra) 6. In this view of the matter, the learned Magistrate committed no error in issuing the process. Petitions are dismissed summarily. (D.G. KARNIK,J.)