IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 29.11.2018 CORAM THE HONOURABLE MR.JUSTICE B.PUGALENDHI Crl.OP.No.23027 of 2011 and M.P.No.2 of 2011 Timilisa ..Petitioner / 3rd Accused Vs. M/s.Sri Bhavani Amman Finance, Rep. by its Partner, G.Rosiah ..Respondent / Complainant Prayer: Petition filed under Section 482 of Criminal Procedure Code to call for records pertaining to the case in C.C.No.2700 of 2011 on the file of the learned X Metropolitan Magistrate, Egmore, Chennai and quash the same. For Petitioner : Mr.K.Mohanraj ORDER This Criminal Original Petition has been filed by the petitioner to quash the proceedings pending against her in C.C.No.2700 of 2011 on the file of the learned 10th Metropolitan Magistrate, Egmore, Chennai. 2. Though notice was ordered as early as in the year 2011, it was not served upon the respondent till date, as the same was returned as unserved. Since this Criminal Original Petition is of the year 2011, this Court proceeds with the matter. 3. The first accused is a private limited company. The second and third accused are the Directors. The petitioner herein, who is the wife of the second accused, is the third accused. The case of the prosecution is that the first accused borrowed certain amount from the respondent / complainant and towards partial discharge for the same, the accused issued a Cheque in favour of the respondent / complainant for a sum of Rs.5,00,000/-. When the said cheque was presented for collection, the same was returned as 'insufficient funds'. After issuing the statutory notice as required under Section 138 of the Negotiable Instruments Act, the respondent / complainant has filed the present complaint. https://hcservices.ecourts.gov.in/hcservices/ 4. The learned counsel for the petitioner would contend that the petitioner herein, who is the third accused, is not a signatory to the cheque and she has nothing to do with the day- to-day affairs of the company. In fact, in the complaint of the respondent, there is no averment attributing any specific role for the petitioner herein, as such, it is hit by the provision under Section 141 of the Negotiable Instruments Act. 5. For better appreciation, Section 141 of the Negotiable Instruments Act is extracted hereunder: “S.141. Offences by companies: (1) If the person committing an offence under section 138 is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. Provided that nothing contained in this sub-section shall render any person liable to punishment if he proves that the offence was committed without his knowledge, or that he had exercised all due diligence to prevent the commission of such offence. (2) Notwithstanding anything contained in sub-section (1), where any offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.” 6. The learned counsel for the petitioner has also relied upon the decision of the Hon'ble Supreme Court reported in (2007) 1 MLJ (1379), in the case of S.M.S.Pharmaceuticals Ltd., v. Neeta Bhalla and another, wherein, it is held as follows: “10. Having regard to the importance of the questions, the matter was referred to a 3-Judge Bench of this Court. Upon noticing the rival contentions of the parties as also the precedents operating in the field, the questions were answered by the larger bench in the following terms: '19. In view of the above discussion, our answers to the questions posed in the reference are as under: (a) It is necessary to specifically aver in a complaint under Section 141 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 and has to be made in a https://hcservices.ecourts.gov.in/hcservices/ complaint. Without this averment being made in a complaint, the requirements of Section 141 cannot be said to be satisfied. ...'” 7. In the aforesaid decision, the Hon'ble Supreme Court has followed its own decision in Saroj Kumar Poddar v. State (NCT of Delhi) and another, reported in (2007) 1 MLJ (Crl) 902 (SC), wherein, it has been held as follows: “14. Apart from the Company and the appellant, as noticed hereinbefore, the Managing Director and all other Directors were also made accused. The appellant did not issue any cheque. He, as noticed hereinbefore, had resigned from the Directorship of the Company. It may be true that as to exactly on what date the said resignation was accepted by the Company is not known, but, even otherwise, there is 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 or otherwise responsible to it in regard to its functioning. He had not issued any cheque. How he is responsible for dishonour of the cheque has not been stated. The allegations made in paragraph 3, thus, in our opinion do not satisfy the requirements of Section 141 of the Act.” 8. Heard the learned Counsel appearing for the petitioner and perused the documents placed on record. 9. The only point raised by the petitioner is that she is not the signatory to the cheque and there is no averment attributing any specific role for her in the affairs of the company. In support of this contention, the learned Counsel has relied on the aforesaid decisions. But, on a perusal of the complaint, it is seen that a specific averment has been made as against accused nos.2 & 3 that they are the Directors and both of them are actively involved in the day-to-day affairs of the first accused company. For better appreciation, the relevant portion from the complaint is extracted as follows: “2. The complainant knew the above named accused residing at No.60/1, Medavakkam 2nd Street, Kellya, Chennai and having office at No.6, 15th Cross Street, Shenoy Nagar, Chennai – 10. The accused-1 has signed in the Cheque. Both the Directors are actively involved in running the day to day affairs of the said accused-1 company. Their address for service is the same.” 10. This averment raised by the complainant, in the opinion of this Court, would satisfy the requirement as contemplated under Section 141 of the Negotiable Instruments Act. In fact, this has been reiterated in the aforesaid decisions referred to https://hcservices.ecourts.gov.in/hcservices/ by the learned Counsel for the petitioner. Therefore, this Court is not inclined to quash the complaint at the threshold. 11. At this juncture, the learned Counsel for the petitioner intervened and sought for dispensing with the personal appearance of the petitioner / third accused, who happens to be a woman, before the trial Court. Considering the age of the petitioner, her personal appearance before the trial Court is dispensed with, however, she shall appear before the trial Court, as and when the same is required by the concerned Magistrate. 12. In the result, this criminal original petition is dismissed. Consequently, connected miscellaneous petition is closed. Sd/- Assistant Registrar(CS VI) //True Copy// Sub Assistant Registrar ska The 10th Metropolitan Magistrate, Egmore, Chennai. Crl.OP.No.23027 of 2011 and M.P.No.2 of 2011 rsi(co) nr 11/10/2019 https://hcservices.ecourts.gov.in/hcservices/