HON’BLE SRI JUSTICE N. RAVI SHANKAR CRIMINAL PETITION No.4953 of 2​008 ORDER:- The petitioner Mrs P.Fathima Imam herein is the third accused (A3) in C.C.No.821 of 2005 on the file of the Court of XV Metropolitan Magistrate, Hyderabad (trial Court). She filed this petition under Section 482 of the Code of Criminal Procedure (for short Cr.P.C) to quash the proceedings against her in the said criminal case. 2. The point that therefore arises for determination in this petition is whether there are grounds to quash the above criminal case as against the petitioner. 3. The point arises in the following circumstances. The first accused (A1) in the said case is a private limited company called M/s. Diamond Aqua Systems Private Limited and it is shown as represented by its Managing Director Mrs. Fathima Imam who is none other than A3. The second accused (A2) in the said case is one Mr. Imam Saheb and he is shown as the Chairman of A1 company and he is admittedly the husband of A3 i.e. the petitioner herein. 4. The second respondent herein which is also a private limited company is the complainant in the aforesaid criminal case. It filed the above criminal case as a private complaint against all the three accused alleging an offence punishable under Section 138 read with Section 142 and also Section 141 of the Negotiable Instruments Act, 1881 (for short Act) on the plea that towards discharge of a subsisting liability, certain cheques for various amounts aggregating to Rs.8,80,500/- were issued by the accused and that when it presented the said cheques for encashment through its banker all the cheques were dishonoured. The cheques said to have been issued by the accused were said to be drawn on Canara Bank, Car Street Branch, Ballary. The second respondent is said to have presented the cheques for encashment through its bank i.e. Oriental Bank of Commerce, Nampally Station Road Branch, Hyderabad which is said to be within the jurisdiction of the trial Court. The other details are not necessary. 5. Regarding the complicity of the petitioner (A3) it is stated in para-6 of the complaint that both the petitioner and also A2 in the case “are responsible” for the day-to-day administration and running of the business of the A1 company. 6. The contention of the petitioner herein is that she is a lady and she has nothing to do with the affairs of the A1 company and she has been unnecessarily dragged into the matter and made an accused and this is nothing but a gross abuse of the process of the Court and all the allegations made against her are false and consequently the aforesaid criminal case against her should be quashed. Sri Sricharan Telaprolu the learned counsel for the petitioner reiterated the above plea of the petitioner. His argument is that the petitioner was never the Managing Director of the A1 company or even a director of the said company and that she is a household lady and has been deliberately made an accused only for harassing her. 7. On the other hand the learned counsel appearing for the second respondent (complainant) argued that the petitioner was Managing Director of the A1 company at the time when the cheques were issued and in any event she has been looking after the affairs of the A1 company and its business and therefore she has been rightly made an accused and consequently there are no merits in this petition. In support of this contention he has placed reliance upon two decisions of our Supreme Court. The first is given in S.M.S. PHARMACEUTICALS LTD. vs. NEETA BHALLA[1] and the second is one given in N.RANGACHARI vs. BHARAT SANCHAR NIGAM LTD.[2]. In the light of the above contentions the point is now taken up. 8. It may be noted that a perusal of a copy of the complaint and also a copy of the sworn statement of one Suneet Sen, a manager of complainant company, recorded by the trial Court before taking cognizance of the case would show that they are silent about the person who signed and issued the cheques on behalf of the A1 company. Copies of three cheques out of the total cheques mentioned by the complainant company have been filed and they purport to have been signed by the Managing Director of the said company but his name is not clear. However, one Sanjal Jalan who is said to be a director of the second respondent company filed counter to this petition. In para-6 of the said counter it is stated that A2 who is described as the petitioner gave the cheques in question. It should be noted here that petitioner is A3 in the case and she is not the second accused while the second accused is one Mr. Imam Saheb. It appears a mistake has been committed in making this averment in the counter. 9. It may however be noted that this petitioner/A3 is none other than the wife of A2. As already mentioned supra in para-6 of the complaint it is specifically averred that “the second and third accused are responsible for the day-to-day administration and running of the business of the first accused company”. Section 141(1) along with its Proviso of the Act reads as follows. “141: Offences by companies- (1) If the person committing an offence under section 138 is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly: Provided that nothing contained in this sub-section shall render any person liable to punishment if he proves that the offence was committed without his knowledge, or that he had exercised all due diligence to prevent the commission of such offence.” 10. Section 141 of the Act deals with offences by companies under the Act. Section 141(1) of the Act reads that when a company has committed an offence under Section 138 of the Act every person who at the time when the offence was committed, was in charge of and was responsible to the company for the conduct of the business of the company as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded with and shall be punished accordingly. The first Proviso then reads that nothing contained in Section 141(1) of the Act shall render any person liable for punishment if he proves that the offence was committed without his knowledge or that he has exercised all due diligence to prevent the commission of such offence. 11. Now in the present case the complainant company in para-6 of its complaint has specifically averred that both the second and third accused are responsible for the day-to-day administration and running of the business of the first accused company. Thus it can be said that the complainant company made specific averments as required by Section 141(1) of the Act against this petitioner and also A2 as laid down in S.M.S. PHARMACEUTICALS LTD’s case (1 supra). Thus it can be said that the complaint does not suffer from any defect from that point of view. 12. It is true that the petitioner is a lady but she is stated to be the wife of A2. It is also true that the complaint is silent about the method and the manner in which the petitioner has been looking after the affairs of first accused company. It may however be noted that the complainant cannot be expected to know the method and the manner in which the petitioner is looking after the business of the A1 company and therefore the contention of Sri Sricharan Telaprolu cannot be accepted in that behalf. 13. It may then be noted that second respondent described the petitioner as a Managing Director of the A1 company and A2 as its Chairman and in the counter in this petition of the complainant company it is mentioned that petitioner issued the cheques as the Managing Director but the complainant also described the petitioner as A2 which is incorrect. It may be noted that a perusal of Section 141(1) of the Act would show that one need not be a Managing Director or a Director of a company to be made liable for a prosecution and it would be sufficient if he or she falls in the category of “every person” who at the time when the offence was committed was in charge of and was responsible or in other words looking after the business of the company. 14. In the present case the complainant company has averred that this petitioner was also looking after the affairs of the business of A1 company when the cheque was issued. It can therefore be said that necessary allegations have been made in the complaint regarding the alleged complicity of this petitioner also for the offence in question. In view of this it may be noted that the plea of the petitioner that she has nothing to do with the business of the A1 company is a plea which has to be decided upon evidence and consequently it is difficult to accept the contention of Sri Sricharan Telaprolu that her plea that she is innocent should be accepted in this petition. The pleas of the petitioner have to be decided only on evidence and that can be done only by the trial Court either in the trial or at any previous stage if that is permitted by law. Thus on these grounds I regret that I am unable to agree with the contentions of the petitioner’s counsel. 15. Accordingly for the aforesaid reasons the point is decided against the petitioner and this criminal petition is dismissed. 16. Parting with the matter it may be noted that the petitioner is a lady. Hence it shall be open for her to move an application before the trial Court for dispensing with her presence during the enquiry or trial. The trial Court shall consider the same and dispense with her presence on every date of hearing except on the dates on which the trial Court considers that her presence is necessary for the progress in the case. ______________________ N. RAVI SHANKAR, J 13th April 2011 CVRK [1] AIR 2005 SC 3512 [2] AIR 2007 SC 1682