... 1 ... IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL WRIT PETITION NO.1859 OF 2006 WRIT PETITION NO.1859 OF 2006 WRIT PETITION NO.1859 OF 2006 Madhav Structural Engineering Ltd. & Ors. ..Petitioners Vs. The State of Maharashtra & Ors. ...Respondents Shri Ramesh Chheda i/by Shri Uday Sankar Samudrala for the Applicant. Shri S.V.More, A.P.P. for the State. CORAM CORAM CORAM : A. S. OKA, J. : A. S. OKA, J. : A. S. OKA, J. DATE DATE DATE : SEPTEMBER 05, 2006. : SEPTEMBER 05, 2006. : SEPTEMBER 05, 2006. P.C.: P.C.: P.C.: 1. Heard the learned Counsel appearing for the Petitioners. The Petitioners are arraigned as accused in a complaint filed by the second Respondent under section 138 read with section 141 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the said Act). 2. The Petitioners filed a Revision Application before the Sessions Court for challenging order issuing process on the complaint filed by the second Respondent. The Revision Application has been rejected by the Sessions Court. 3. The learned counsel appearing for the Petitioners submitted that the averments made in the ... 2 ... complaint are very vague. He submitted that name of the person who allegedly agreed on behalf of the Petitioner No.1 to take over liability of a third party M/s.Mukund Constructions is not mentioned in the complaint and this fact is significant as the Petitioner No.1 is an incorporated body. He submitted that the necessary averments as required by section 141 of the said Act are not found in the complaint. He submitted that the complaint is filed as if the second Respondent herself has signed and verified the complaint and infact the complaint has been signed and verified by the alleged constituted attorney of the second Respondent in whose favour power of attorney was executed few days before filing the complaint. In the verification recorded by the constituted attorney it is stated that the accused Nos.2 and 6 are looking after day to day business of the Petitioner No.1. He placed reliance on decision of learned single Judge of this court in the case of Vijay Mallya Vs. The State of Maharashtra & Anr. decided on 23rd December, 2004. He submitted that there is a complete non-application of mind by the learned Magistrate while issuing the process. 4. I have considered the submissions. In the case ... 3 ... of Monaben Ketanbhai Shah & Anr. Vs. The State of Gujrat (2004(7) SCC Page 50) the Apex Court held that if the substance of the allegations made in the complaint fulfil the requirements of the section 138 of the said Act, the complaint has to proceed and is required to be tried. The Apex Court also held that while examining a complaint under section 138 of the said Act, hyper-technical view should not be adopted so as to quash the same. The Apex Court further observed that power of quashing should be exercised very sparingly. It was further held that, where, a factual foundation for the offence has been made in complaint, it should not be quashed. The Apex Court also held that under section 141 liability is fastened on those who at the time of commission of offence were incharge of and were responsible to the firm for the conduct of its business. 5. A perusal of the complaint shows that in paragraph No.2 thereof the complainant has averred that the accused Nos.2 to 6 are incharge of and are responsible for day to day affairs of the accused No.1-Company and as well as for the conduct of business of the accused No.1-Company. It is alleged that the accused No.7 was an authorised signatory of the accused ... 4 ... No.1. It is averred that accused Nos.5 and 7 are partners of M/s.Mukund Constructions, a partnership firm and the said partnership firm is the sister concern of the accused No.1. It is stated that the complainant had transactions with M/s. Mukund Constructions. It is stated that the accused No.1 (Petitioner No.1) and M/s. Mukund Constructions are related to each other in the business. In paragraph No.4 of the complaint it is stated that the Petitioner No.1-Company came forward to take over liability of M/s.Mukund Constructions to pay a sum of Rs.07,00,000/- to the complainant. Thus, if the complaint is read as a whole, it is obvious that necessary ingredients of section 141 of the said Act have been incorporated. It is also averred that the accused Nos.5 and 7 who are the Directors of the accused No.1 are partners of M/s.Mukund Constructions. 6. The submissions which are made by the learned counsel for the Petitioners as regards the execution of the power of attorney and the knowledge of the constituted attorney of the facts of the case are concerning the defence of the Petitioners to the complaint. Since factual foundation for the offence has been laid in the complaint, the Revisional Court ... 5 ... was right in not interfering with the order issuing process. Reliance placed on decision of the learned single Judge of this court in the case of Vijay Mallya (supra) will not help the Petitioners in view of the facts of the present case. No case is made out for interference. Petition is rejected. 7. It is made clear that nothing stated in the order shall be construed as expression of any opinion on merits of the pending complaint and all contentions of the Petitioners in the pending complaint are expressly kept open. JUDGE JUDGE JUDGE