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 WRIT PETITION NO.1147 OF 2008 Mr.Hamjekhan Gula Mujawar & Anr. .. Petitioners Vs. Mr.Jaydeep Baburao Patil & Anr. .. Respondents Mr.Ashutosh M. Kulkarni for the petitioners. Mr.M.S.Mohite for Respondent No.1. Mr.Y.S.Shinde, A.P.P for Respondent No.2. CORAM CORAM CORAM : ABHAY S.OKA, J. : ABHAY S.OKA, J. : ABHAY S.OKA, J. DATED DATED DATED : 12th August 2008. : 12th August 2008. : 12th August 2008. ORAL ORAL ORAL JUDGMENT: JUDGMENT: JUDGMENT: . I have heard learned counsel appearing for the parties on the last date. Today the petition is kept for dictation of judgment. By this petition under Article 227 of the Constitution of India, the petitioners have taken an exception to the order issuing process passed by the learned Magistrate on a complaint filed by the 1st respondent alleging commission of offence under section 138 of the Negotiable Instruments Act, 1881. The order issuing process has been confirmed in revision application filed by the petitioners. 2. The learned counsel appearing for the petitioner has invited my attention to averments made in the complaint. He pointed out that the 2nd petitioner has been arraigned as accused No.5 on the allegation that the 2nd petitioner was liable to pay a sum of Rs.06,95,540/- to the 1st respondent and at the instance : 2 : 2 : 2 : of the 2nd petitioner the 1st accused company (M/s.Ritza Wine Pvt. Ltd.) issued a cheque in the sum of Rs.06,95,540/- which was dishonoured. He pointed out that the 1st petitioner who has been arraigned as accused No.4 in the complaint has been described as a Director of the accused No.1 company. He submitted that on plain reading of the complaint, the 2nd petitioner cannot be held liable for an offence under section 138 of the said Act of 1881. Relying upon the decision of the Apex Court in the case of S.M.S. Pharmaceuticals Ltd. Vs. Neeta Bhalla & Anr. [(2005) 8 Supreme Court Cases 89] he submitted that as necessary averments have not been made in the complaint, the same was not maintainable against the 1st petitioner. 3. The learned counsel appearing for the 1st respondent invited my attention to another decision of the Apex Court in the case of N.Rangachari Vs. Bharat Sanchar Nigam Limited [2007 ALL MR (Cri.) 1437]. Relying upon the said decision, he submitted that the averments made in this petition are in confirmity with the requirement of section 141 of the said Act. He submitted that the Apex Court in the said decision has considered the case of SMS Pharmaceuticals (supra) and has accepted that it is not necessary that the averments in the complaint shall be in terms of the words used by the statute and it is not necessary precisely to state : 3 : 3 : 3 : that the directors were incharge of and responsible for the conduct of the business of the company on the date on which the offence was committed. He, therefore, submitted that no interference was called for. 4. I have carefully considered the submissions. The only averment made against the 2nd petitioner is in paragraph 3 of the complaint which reads thus: "3) The complainant submits that the accused No.5 was under obligation to pay an amount of Rs.6,95,540/- to the complainant towards the sale of wine. The complainant submits that, in pursuance of the said business transaction, the accused No.1 issued a cheque bearing No.69290 dated 01/05/2007 drawn on UTI Bank Ltd., for an amount of Rs.6,95,540/- at the instance of the accused No.5. Moreover, at the time of issuing the aforesaid cheque, the accused Nos.1 and 5 assured and promised the complainant that the aforesaid cheque shall be honoured without fail on presentation for encashment." Thus, admittedly the cheque is not drawn by the 2nd petitioner. The 2nd petitioner is not the payee of the cheque. Therefore, there cannot be any prosecution : 4 : 4 : 4 : against the 2nd petitioner under section 138 of the said Act. As far as the 1st petitioner is concerned, the material averments made in paragraph 1 of the complaint read thus: " ... The complainant submits that the accused Nos.2,3 and 4 are the Directors of the accused No.1 and they are responsible for affairs of day to day activities of accused No.1. ....." 5. On plain reading of section 141 of the said Act and what is held by the Apex Court in the case of SMS Pharmaceuticals (supra), the aforesaid averments fall short of the requirement of section 141 of the said Act. Reliance was placed on the case of N.Rangachari (supra). It must be noted here that the decision of the Apex Court of SMS Pharmaceuticals is rendered by a bench consisting of three Hon’ble Judge and the decision in the case of N.Rangachari (supra) is rendered by the bench consisting of two Hon’ble Judges. Careful perusal of the judgment shows that the Apex Court has not made any departure from the law laid down in the case of SMS Pharmaceuticals (supra). Paragraph No.18 of the said decision makes this fact clear. The said paragraph shows that considering the complaint in the case before : 5 : 5 : 5 : it as a whole, the Apex Court was satisfied that there were requisite averments made in the complaint. Thus, the Apex Court found in the facts of the case before it that the averments made in the complaint were in confirmity with the requirement of law. 6. In the present case, on plain reading of section 141 of the said Act and what is held by the Apex Court in the case of SMS Pharmaceuticals (supra), necessary averments have not been incorporated in the complaint. Infact, in the case of SMS Pharmaceuticals (supra), the Apex Court observed that without incorporating essential requirements of section 141, it cannot be said that requirements of section 141 are satisfied. 7. Therefore, the learned Magistrate has committed an error by issuing process against the petitioners. The petition must accordingly succeed and rule is made absolute (b). It is however made clear that observations made in the judgment are for limited purpose of considering the contentions raised by the parties to this petition and all the contentions of the parties to the complaint are expressly kept open. (A.S.Oka, J)