J B GARG Vs. STATE

JUDGEMENT

(1.) THE petitioner is summoned in the complaint filed by respondent No. 2 herein under Section 138 of the Negotiable Instruments Act in which the petitioner has been arrayed as accused no. 2. As per the averments made in the said complaint, accused No. 1, namely, Bankman Cooperative Urban (Salary Earners) Non-Agriculture thrift and Credit Society Ltd. (hereinafter referred to as the 'society' had issued cheques for repayment of loan/deposit to the respondent herein and those cheques were dishonoured on presentation. Total amount of these cheques comes to Rs. 2,83,500/ -. Petitioner No. 2 is the Secretary of the said Society. In this petition filed by the petitioner he submits that there is not even a whisper about the petitioner being in-charge of the affairs of said Society (accused No. 1) and, therefore, the petitioner could not have been made party as ingredients of Section 141 of the Negotiable Instruments Act are not satisfied.

(2.) SUBMISSION of the learned counsel for the petitioner that in the complaint there are no averments qua him appears to be correct. No doubt, in the cause title wherein the petitioner is impleaded as accused No. 2, it is mentioned that the is the Secretary of the Society/accused No. 1. However, there are no imputations against the petitioner in the entire complaint except averment in para 5 to the effect that the respondent herein/complainant had informed him about the dishonour of the cheque. As per the provisions of Section 141 of the Negotiable Instruments Act, any person who is in-charge of the affairs of the company/body corporate can be made accused. But there has to be averments in this behalf in the complaint and onus is upon the complainant, in the first instance, to satisfy about the presence of this ingredient Supreme Court in the case of S. M. S. Pharmaceutical Ltd. v. Neeta Bhalla and Another, 2005 [3] JCC [ni] 203 has settled the law on this aspect. This is what was observed in paras 7 and 8 of the said judgment :

(3.) COMMENTING upon the nature of averments that a criminal complaint should carry, is also discussed in detail from para 15 onward in the aforesaid judgment taking stock of various judgments of different High Courts as well as in its own judgments including the case of Monaben Ketanbhai shah v. State of Gujarat, 2004 (7) SCC 15 wherein it was held that the primary responsibility is on the complainant to make necessary averments in the complaint so as to make the accused vicariously liable for fastening the criminal liability. That was a case of a partnership firm and the Court categorically held that there was no presumption that every partner knows about the transaction. The obligation was on the complainant to prove that at the time the offence was committed they were not in charge of and were not responsible to the firm for the conduct of business of the firm, would arise only when first the complainant makes necessary averments in the complaint and establishes that fact. The Court found that there was total absence of requisite averments in the complaint and, therefore, set aside the summoning orders against such partners. It is identical situation in the present case. As already mentioned above, there is no averment in the complaint that the petitioner herein is/was in charge and responsible for conduct of business of accused No. 1. Mainly because he is a Secretary, no such presumption can be drawn in the absence of specific averment by the complainant in the first place. The summoning orders qua the petitioner are, therefore, cannot be sustained and are hereby quashed.