THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL PETITION No. 5800 of 2009 Date: 21st March, 2011 Between: K. Janardhana Gupta and 2 others … Petitioners A n d The State of Andhra Pradesh, Rep. by its Public Prosecutor and another … Respondents THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL PETITION No. 5800 of 2009 ORDER: The petitioners 1 to 3/A3 to A5 are accused of offence punishable under Section 138 of the Negotiable Instruments Act (in short, the Act) in C.C.No.593 of 2008 on the file of V Additional Judicial Magistrate of the First Class, Guntur. It is alleged that A1 is a partnership firm in which A2 to A5 are partners and that the 2nd respondent/complainant was also a partner in A1-firm and that when he retired from the said partnership firm, other existing partners became liable to pay him Rs.3,00,000/- towards his share and that towards part of the said amount, A2 representing A1 firm had drawn cheque in question for Rs.30,000/- which was later bounced. Therefore, the 2nd respondent instituted complaint in the lower Court against A1 to A5 for the offence under Section 138 of the Act. 2. It is contended by the petitioners’ counsel that there is no evidence to show that A3 to A5 are partners of A1-firm. The petitioners’ counsel filed a partnership deed relating to Sri Vikas Junior College and contended that it does not show A3 to A5 as partners therein. The said partnership deed does not relate to A1-firm which is named as Sri Vikas Coaching Centre. No partnership deed much less such partnership registered with the registrar of firms is placed before this Court. The cheque in question reads that it was drawn by A2 for Sri Vikas Coaching Centre(A1). Therefore, it cannot be said that A3 to A5 are not partners of A1 firm. It is a matter which has to be gone into and decided by the trial Court. 3. Reliance is placed on S.M.S PHARMACEUTICALS LTD. Vs. NEETA BHALLA AND ANOTHER[1] of the Supreme Court and it is contended by the petitioners’ counsel that there are no allegations touching Section 141 of the Act in the complaint filed by the 2nd respondent. Relevant portion of that decision reads as follows:- “It is necessary to specifically aver in a complaint under Section 141 that at the time the offence was committed, the person accused was in charge of, and responsible for the conduct of 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.” 4. When averments in the complaint are scrutinized with reference to the above requirement, it is merely stated in the complaint that the 2nd accused who is having cheque power, in the presence of A3 to A5, on behalf of A1 issued cheque for Rs.30,000/- drawn on Karur Vysya Bank Ltd., Hindupur, as part payment. There is absolutely no averment in the complaint to the effect that A3 to A5, at the time the offence was committed, were in-charge of, and was responsible to A1-firm for the conduct of the business of A1-firm. In the absence of any such averment in the complaint and when A3 to A5 are not signatories to the dishonoured cheque and in the absence of any participation for A3 to A5 in the business of A1-firm, in my opinion, A3 to A5 are not liable to be prosecuted for the offence under Section 138 of the Act, simply because A3 to A5 were also physically present when A2 had drawn the Cheque in question on behalf of A1 and gave the same to the 2nd respondent/ complainant. Continuation of criminal proceedings against A3 to A5, in these circumstances, amounts to abuse of process of law. 5. In the result, the Criminal Petition is allowed quashing proceedings in C.C.No.593 of 2008 on the file of V Additional Judicial Magistrate of the First Class, Guntur, insofar as the petitioners 1 to 3/ A3 to A5 are concerned. _____________________________ SAMUDRALA GOVINDARAJULU, J 21st March, 2011 KSM [1] (2005) 8 Supreme Court Cases 89