1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 2665 OF 2008 Mr. Joy Thomas ... Applicant Vs. State of Maharashtra & Ors. ... Respondents Mr. Aashish S. Chavan,Advocate, for the applicant.. Smt.V.R.Bhosale, APP, for the respondent No.1 - State. Mr. K.K.Malephatak,Advocate, for respondent Nos. 2 to 4.. CORAM: J.H.BHATIA, J. DATE : 23rd June, 2010. P.C. 1. Heard the learned Counsel for the parties. 2. By this Application, the original complainant seeks to quash the impugned order dated 29.4.2008 passed by the learned Additional sessions Judge, Thane in Criminal Revision Application No.283/2006 whereby he quashed the order of issuance of process against accused No.s 3, 4 and 5, who are respondents before this Court. 3. From the application filed by the complainant under Section 138 of the Negotiable Instruments Act, it appears that the accused No.1 is a family 2 business of which accused Nos. 2 to 5are the beneficiaries. The complainant had advanced amount of Rs.2,50,000/- to the accused persons for expansion of their family business run in the name of "M/s. Munna Trade Lines" i.e. accused No.1. The amount was not repaid and the accused No.2 issued a post-dated cheque bearing date 16.9.1999 for the amount of Rs.2,50,000/- in favour of the complainant drawn on Centurion Bank Ltd., Nariman Point Branch, Mumbai where the accused No.2 had an account. The cheque was presented through Vysya Bank Ltd. and was returned dishonoured. Thereafter notice was issued by the complainant. The notice was received but inspite of that payment was not made. In para 6 of the complaint, it was stated that the accused had duly received the loan amount and had acknowledged the same and therefore, they are made jointly and severally liable in all the affairs of the said business. The trial Court issued the process against all the accused. That order was challenged by accused Nos. 3, 4 and 5. 4. On perusal of the complaint, it appears that the accused No.1 is said to be a family business of the accused Nos. 2 to 5 and, therefore, even though it is not a firm within the meaning of the Partnership Act, it amounts to association of individuals carrying on business and as such comes within the definition of the "company" as per the Explanation to Section 141 of the Negotiable Instruments 3 Act. Section 141 (1) clearly provides that when the offence under Section 138 is committed by a company, every person who, at the time offence was committed, was in charge of and was responsible to the company for the conduct of the business of the company, shall be deemed to be guilty of the offence besides the company itself. In the complaint, nowhere it is stated that accused nos.3,4 or 5 were incharge of and were responsible for the conduct of the business of accused No.1. The only contention of the complainant was that accused no.2 had issued the cheque and that too against his own account. There is no material in the complaint to show that the accused Nos.3,4 and 5 were in charge of and responsible for the conduct of the business of the company i.e.accused No.1. It is now well settled position of law that only a person, who is in charge of and responsible for the conduct of the business of the company is guilty for the offence punishable under section 138. Therefore, I find no substance in the present Revision Application. 5. For the aforesaid reasons, the Application stands dismissed. (J.H.BHATIA,J.)