IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MMO No. 116 of 2007 Reserved on: 29.4.2008 Date of decision: 15.05.2008 Ashwani Kumar ... Petitioner Versus M/S Kehar Wine Agency & Ors. …Respondents Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 Yes. For the petitioner: Mr. Naresh Thakur, Advocate. For the respondents: Mr. Suneet Goel, Advocate, for respondent No. 1. V.K. Ahuja, J.: This is a petition filed by the petitioner under Section 482 Cr.P.C. read with Article 227 of the Constitution of India, for quashing the orders passed by the learned Sessions Judge, Hamirpur, on 5.9.2007. Briefly stated the facts of the case are that respondent No. 1 as complainant filed a complaint under Section 138(b) of the Negotiable Instruments Act, as against the petitioner who was impleaded as accused No. 3, while the other respondents were impleaded as accused Nos. 1,2 and 4 to 7. The learned trial Court after recording preliminary evidence passed an order summoning respondents No. 3 and respondent No. 2 under Section 138 read with Section 141 and 142 of the Negotiable Instruments Act, who were impleaded as accused No. 1 and 2 before the learned trial Court. 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 In view of the fact that the remaining persons impleaded in the complaint were not summoned by the learned trial Court, a revision was filed by respondent No.1/complainant before the learned Sessions Judge who vide his impugned order held that the process is liable to be issued to remaining accused Nos. 2 to 6 also. Being aggrieved by the said order, the present revision petition has been filed. I have heard the learned counsel for the parties and have also gone through the record. The submissions made by the learned counsel for the petitioner were that the order passed by the learned Chief Judicial Magistrate was correct as had summoned only two of the accused persons vide its impugned order dated 5.9.2007, but the learned Sessions Judge has wrongly allowed the petition and directed that the petitioner and other respondents be also summoned which order is palpably wrong, hence the present petition filed by the petitioner. It was contended that in case of company there have to be specific allegations under Section 141 of negotiable Instruments Act that the petitioner and other respondents were also Incharge of the company for its day to day affairs and were responsible to the company for conduct of the business of the company and only then, the petitioner can be said to be liable to be summoned accordingly. It was submitted that there were no specific allegations made in the complaint that the petitioner and other respondents were Incharge of the company or were responsible for the conduct of the business of the company and since the cheque in question was issued by respondent No. 1 on behalf of respondent No. 7 and those two persons only were liable they had been rightly summoned by the learned trial Court and the order passed by the learned Sessions Judge is liable to be set aside. 3 To substantiate his submissions, the learned counsel for the petitioner had relied upon the following decisions:- The decision in S.M.S. Pharmaceuticals Ltd. Vs. Neeta Bhalla and another, (2005) 8 Supreme Court Cases 89, shows that in considering the provisions of Section 141 of the Negotiable Instruments Act, the following observations were made by their Lordships, which are relevant and are being reproduced below:- “There is almost unanimous judicial opinion that necessary averments ought to be contained in a complaint before a person can be subjected to criminal process. A liability under Section 141 of the NI Act is sought to be fastened vicariously on a person connected with a company, the principal accused being the company itself. It is a departure from the rule in criminal law against vicarious liability. A clear case should be spelled out in the complaint against the person sought to be made liable. Under Section 141 what is required is that the persons who are sought to be made criminally liable should be, at the time the offence was committed, in charge of and responsible to the company for the conduct of the business of the company. Every person connected with the company shall not fall within the ambit of the provision. It is only those persons who were in charge of and responsible for the conduct of business of the company at the time of commission of an offence, who will be liable for criminal action. The liability arises on account of conduct, act or omission on the part of a person and not merely on account of holdings an office or a position in a company. Therefore, in order to bring a case within Section 141 of the Act the complaint must disclose the necessary facts which make a person liable. It is necessary to specifically aver in a complaint 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 4 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.” The decision in Saroj Kumar Poddar Vs. State (NCT of Delhi) and another, (2007) 3 Supreme Court Cases 693, shows that there was no averment in the complaint petitions as to how and in what manner the appellant was responsible for the conduct of the business of the Company. He having not issued any cheque, his responsibility for dishonour of the cheque was not stated specifically. The allegations, thus, did not satisfy the requirements of Section 141 which were obligatory. Hence, allegations in the complaint petitions even if taken to be correct in their entirety do not disclose any offence against the appellant. Therefore, the proceedings against him are liable to be quashed. On the other hand, learned counsel for respondent No. 1 had supported the impugned order. He had relied upon the following decision to support the order passed by the learned Sessions Judge. The decision in Lok Housing & Constructions Ltd. Vs. Raghupati Leasing & Finance Ltd. & Anr., 2003 (1) Crimes 7, shows that in that case there were clear averments in complaint that the accused No. 2 to 12 were officers-in-charge and responsible to company for conduct of day to day business at the time of commission of offence. It was held that it was question of facts. Onus to prove that some of the accused was not responsible for conduct of business would be on them. Coming to the facts of the case, a perusal of the complaint filed by the complainant shows that he only alleged that in the month of April, 2004 to March, 2005, accused persons informed and introduced 5 themselves as wine contractors and he believed the said information as true. The complainant supplied various quantity of items to them and the cheque was issued by accused No. 1 Ramesh Singh. The decision of the Apex Court referred to above clearly shows that there have to be specific allegations that all the respondents were responsible to the company and were Incharge of the business of the company but there were no specific averments made in the complaint and accordingly, the learned trial Court had considered the question and observed that cheque in question was issued only by accused No. 1 but it was issued on behalf of respondent No. 7 and accordingly, accused Nos. 1 and 7 were proceeded against by the learned trial Court, which order does not suffer from any infirmity. The findings recorded by the learned Sessions Judge setting aside the said order cannot be said to be correct and are liable to be set aside,. In view of the above discussion, the order passed by the learned Sessions Judge summoning the petitioner and other respondents is set aside. In view of the fact that the petitioner and other respondents were summoned vide a common order and the order has been challenged only by the petitioner, consequently, the order passed in summoning the other respondents also as mentioned above, in pursuance of the order passed by the learned Sessions Judge is quashed in full since it is a single order and has to be set aside in full only. The case shall go back to the learned trial Court who shall proceed with the case against respondents no. 1 and 7 as per its order. Parties to appear before the learned trial Court on 23rd June, 2008. The learned trial Court shall try to dispose of the case at the earliest being an old case. The observations made above are relevant only for disposal of the present petition and the learned trial Court shall decide the case unaffected by the observations made in this case. 6 Cr.MP No. 606 of 2007: In view of the disposal of the main petition, this application also stands disposed of and the order dated 7.12.2007 shall stand vacated. ( V.K. Ahuja ), May 15, 2008 Judge (BSS)