... 1 ... IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.3381 OF 2006 CRIMINAL APPLICATION NO.3381 OF 2006 CRIMINAL APPLICATION NO.3381 OF 2006 Praveen Prakash Sonalkar & Anr. ...Applicants Versus M/s.Khemlani Finance Pvt.Ltd & Anr. ...Respondents Shri Osman Chisty for the Applicants. Shri M.S.Prasad for the Respondent No.1. Mrs M.M.Deshmukh, A.P.P for the State. CORAM : A. S. OKA, J. CORAM : A. S. OKA, J. CORAM : A. S. OKA, J. DATE : DECEMBER 07, 2006. DATE : DECEMBER 07, 2006. DATE : DECEMBER 07, 2006. P.C.: P.C.: P.C.: 1. Heard the Advocate appearing for the Applicants and the Advocate appearing for the first Respondent. The learned counsel appearing for the parties submitted that instead of remanding the revision Application for consideration of the Sessions court, the case of the Applicants should be considered by this court at the stage of admission. Rule. The Respondents waive service. I have taken up this Application under section 482 of the Code of Criminal Procedure, 1973 for final hearing. 2. The application is filed by the Applicants who are arraigned as the accused Nos.5 and 7 in a complaint ... 2 ... filed by the first Respondent under section 138 read with section 141 of the Negotiable Instruments Act, 1881. 3. The submission of the learned counsel for the Applicants is that there are no factual averments in the complaint filed by the first Respondent as required by section 141 of the said Act of 1881. He submitted that no such averments find place in the affidavit of examination-in-chief filed by the first Respondent. Apart from this, he placed reliance on Form No.32 filed with the Registrar of Companies to show that the Applicants had resigned as Directors prior to the date on which cause of action arose for filing the complaint. The learned counsel appearing for the first Respondent opposed the submissions made by the learned counsel appearing for the Applicants and contended that no interference is called for. 4. I have perused the complaint filed by the first Respondent. The material averments made in the complaint read thus: "The accused No.1 is a company having its ... 3 ... office at the address mentioned in the title and the accused No.2 is the Managing Director of the company accused No.1. The Accused Nos.3 to 8 are Directors of accused No.1 and accused No.9 is the Chief Financial Officer of accused No.1. Accused Nos.10 and 11 are authorised signatories of the accused company. The complainant is a financial company and engaged in the business of advancing loans to corporate bodies". 5. The Apex Court in the case of S.M.S.Pharmaceuticals Limited Vs. Neeta Bhalla & Another (2005(4) Maharashtra Law Journal Page 731) had occasion to consider the scope of section 141 of the Negotiable Instruments Act, 1881. While answering the questions referred, the Apex Court has held thus: "(a) It is necessary to specifically aver in a complaint under section 141 that at the time the offence was committed, the person accused was incharge of, and responsible for the conduct of ... 4 ... business of the company. This averment is an essential requirement of section 141 and has to be made in a complaint. Without this averment being made in a complaint, the requirements of section 141 cannot be said to be satisfied. (b) The answer to question posed in sub-para (b) has to be in negative. Merely being a director of a company is not sufficient to make the person liable under section 141 of the Act. A director in a company cannot be deemed to be incharge of and responsible to the company for conduct of its business. The requirement of section 141 is that the person sought to be made liable should be incharge of and responsible for the conduct of the business of the company at the relevant time. This has to be averred as a fact as there is no deemed liability of a director in such ... 5 ... cases". If averments made in the complaint are read and in particular the averments which are quoted above, it is obvious that requisite averments as contemplated by the Apex Court do not find place in the complaint. It is obvious that only on this ground process could not have been issued against the present Applicants. 6. Therefore, this is a fit case for quashing the order issuing process in so far as the present Applicants are concerned. 7. Hence, I pass the following order: (i) The order dated 09th October, 2001 passed by the learned Trial Judge of issuing process on complaint bearing No.C.C.No.1356/SS/05 is quashed and set aside only in so far as the Applicants are concerned. (ii) The Trial Court is free to proceed with the complaint as against the other accused. ... 6 ... (iii) Parties to act upon an authenticated copy of this order. JUDGE JUDGE JUDGE