IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 28.10.2009 C O R A M THE HONOURABLE MR.JUSTICE K.MOHAN RAM Criminal Original Petition No.15842 of 2002 and Crl.M.P.No.6300 of 2002 Ms. Jayashree, Partner, M/s. Shree Krishna Agencies 3/628 L.N.Puram Palakkad – 678 005 ... Petitioner -Vs.- M/s. Thomson Consumer Electronics (I) Ltd., Rep. By its Legal Counsel & Authorised Power of Attorney Ms. Bamini Viswanath 44, 2nd Floor, Krishna Shree Building 1st Main Road, Gandhi Nagar, Adyar, Chennai – 600 020 ... Respondent Criminal Original Petition under Section 482 of the Criminal Procedure Code to call for the records comprised in C.C.No.8956 of 1999 pending on the file of the XIV Metropolitan Magistrate, Egmore, and quash the same. For Petitioner : Mr. S.Venkatesan For Respondent : Mr. A.Manoharan (Amicus Curiae) - - - O R D E R Though the respondent has been served, the respondent is neither appearing in-person nor through counsel, hence, Mr.A.Manokaran, learned counsel, is appointed as Amicus Curiae to assist this Court and to appear on behalf of the respondent. 2. The above Criminal Original Petition has been filed by the third accused in C.C.No.8596 of 1999 on the file of the learned XIV Metropolitan Magistrate, Egmore, Chennai, wherein the petitioner is facing trial for an alleged offence under Section 138 of the Negotiable Instruments Act and the petitioner is seeking to quash all further proceedings therein. 3. In the complaint, it is alleged that the petitioner is one of the partners of the first accused-firm. Towards the money due to the respondent / complainant, the first accused / firm, issued cheques bearing Nos.133032 dated 30.12.1998 and 133033 dated 30.01.1999 both for a sum of Rs.1,00,000/- totaling to Rs.2,00,000/-. When the aforesaid cheques were presented for encashment, the same were returned unpaid with an endorsement "funds insufficient". After https://hcservices.ecourts.gov.in/hcservices/ complying with the statutory requirements, the complaint was filed and the same has been taken on file by the learned Magistrate. Being aggrieved by that, the above Criminal Original Petition has been filed. 4. Heard the learned counsel on either side. 5. Learned counsel for the petitioner submitted that except the following averments in paragraph 15 namely, "the first accused being a partnership firm, the second accused being the Managing Partner of the first accused firm and the third, fourth, fifth and sixth accused being the partner of the first accused firm and are all jointly and severally liable for the acts committed by the first accused firm", no other avements have been made in the complaint to effect that the third accused, the petitioner herein, is incharge of and responsible for the conduct of the business of the first accused-firm. He further submitted that in the absence of such averment, the petitioner cannot be arrayed as an accused by invoking the provisions contained in Section 141 of the Negotiable Instruments Act. 6. On the aforesaid submissions, the learned counsel for the respondent (Amicus Curiae) was heard. 7. I have considered the said submissions made by the learned counsel on either side and perused the allegations contained in the complaint. 8. As rightly contended by the learned counsel for the petitioner there is absolutely no averment in the complaint to the effect that the petitioner herein is incharge of and responsible for the conduct of the business of the first accused-firm. In the absence of such allegations it is not possible to invoke the provisions contained in Section 141 of the said Act and array the petitioner as an accused in the case. This vital aspect has been failed to be noticed by the learned Magistrate and therefore the cognizance taken as against the petitioner herein (A-3) is erroneous. 9. For the said reasons, the above Criminal Original Petition is allowed and all further proceedings in C.C.No.8956 of 1999, pending on the file of the XIV Metropolitan Magistrate, Egmore, as far as the petitioner herein is concerned, is hereby quashed. 10. Since C.C.No.8956 of 1999 is pending right from the year 1999, the learned XIV Metropolitan Magistrate, Egmore, Chennai, is hereby directed to dispose of the same positively within a period of four (4) months from the date of receipt of a copy of this order. Consequently, the connected Crl.M.P is closed. Sd/ Assistant Registrar /True Copy/ Sub Assistant Registrar https://hcservices.ecourts.gov.in/hcservices/ srk To 1. The XIV Metropolitan Magistrate, Egmore 2. -Do-Thro The Chief Metropolitan Magistrate Egmore, Chennai - 8 1 cc To Mr.A.Manoharan, Advocate, SR.57112 1 cc To Mr.S.Venkatesan, Advocate, SR.57071 Crl.O.P.No.15842 of 2002 & Crl.M.P.No.6300 of 2002 BK(CO) SRA(11/11/2009) https://hcservices.ecourts.gov.in/hcservices/