1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR ORDER S.B.CRIMINAL MISC. PETITION NO. 760/2006 (Gautam Chand Kothari . V/s State of Rajasthan & anr.) Date of Order : 07/08/2006 PRESENT HON'BLE MR. JUSTICE H.R.PANWAR Mr. P.C. Solanki, for the petitioner. Mr. Ashok Upadhyay, public prosecutor. Mr. R.N.Bishnoi for the non-petitioner No.2. BY THE COURT:- By the instant criminal misc. petition under Section 482 Cr.P.C., petitioner Gautam Chand Kothari seeks quashing of criminal complaint qua him filed by non-petitioner No.2 under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the Act' hereinafter). I have heard learned counsel for the parties. Carefully gone through the complaint filed by non-petitioner No.2. It is contended by learned counsel for the petitioner that though the petitioner has been shown as partner of the firm M/s Arpit Metal Industries in the complaint filed by non-petitioner No.2 against M/s Arpit Metal Industries through its partner Sunil 2 Kothari, but in the complaint, it has not been specifically averred that the petitioner is responsible for the conduct of the business of the firm. Learned counsel for the petitioner has relied on a decision of Hon'ble Supreme Court in SMS Pharmaceuticals Ltd. Vs. Neeta Bhalla, 2005 Cr.L.R. (SC) 762 and a decision of this Court in Mahaveer Kothari Vs. State of Rajasthan and Anr. in S.B.Criminal Misc. Petition No. 619/03 decided on 31.3.2006 arising out of the very complaint case. Learned counsel for the petitioner submits that so far as Sunil Kothari is concerned, he is the person who has signed and issued the cheque but the other partners of the firm cannot be held liable unless it is alleged in the complaint that they were incharge of and responsible for the conduct of the business of the firm. The complainant failed to aver in the complaint that the petitioner was incharge of and responsible for the conduct of the business of the firm. In SMS Pharmaceuticals Vs. Neeta Bhalla (supra) Hon'ble Supreme Court while considering the provisions of Section 141 of the Act held that it is necessary to specifically aver in the complaint under Section 141 that at the time offence was committed, the person accused was incharge of and responsible for conduct of business of company. This averment is an essential requirement of Section 141 and has to be made in complaint. Without this averment being made in a complaint, the requirement of Section 141 cannot be said to be satisfied. 3 Keeping in view the decision of Hon'ble Supreme Court, in my view, in the instant case, the complainant failed to aver in the complaint that present petitioner Gautam Chand Kothari, at the time of commission of the offence, was incharge of and responsible for the conduct of the business of the firm and therefore, the complaint qua petitioner Gautam Chand Kothari deserves to be quashed. Consequently, the petition is allowed. Criminal Complaint filed by non-petitioner No.2 being Criminal Complaint Case No. 361/04 qua petitioner Gautam Chand Kothari stands quashed. (H.R.PANWAR),J. rp