KAREEM Vs. ABBAS

JUDGEMENT

(1.) .

(2.) THIS criminal original petition has arisen in this way : The respondent preferred a private complaint against the petitioner and two others arraying the petitioner as third accused. According to the respondent/complainant, the first accused is a firm and accused Nos. 2 and 3 are the partners of the firm. Towards purchase of goat skins from the complainant, on behalf of the first accused firm, the second accused issued a post-dated cheque dated April 27, 1998, for Rs. 4, 03, 715, drawn on Canara Bank, Park Town Branch, Madras. When the complainant presented the cheque through his bankers for collection during July, 1998, the cheque bounced with an endorsement "funds insufficient". Again, he had presented the cheque on August 1, 1998, but the cheque was returned on August 3, 1998, with a similar endorsement. Therefore, the complainant issued a statutory notice demanding payment within fifteen days on August 18, 1998. Accused Nos. 1 and 2 received the notice on August 19, 1998, but they did not make any payment. Therefore, the respondent herein/complainant preferred the complaint against the company and the partners. In the complaint, the complainant had stated that at the time when he preferred the complaint, he was not aware of the name of the second partner, namely, the petitioner. Therefore, he has also added the petitioner as the party-accused to the complaint.

(3.) THUS, it would be evident that such partners who were in charge of and responsible for the conduct of the business and day-to-day affairs of the company are liable under section 138 of the Negotiable Instruments Act. Though they themselves might not have issued the cheque, to attract the culpability there should be an averment to that effect in the complaint. Mere mention that a particular person is a partner of the firm or the company is not sufficient to bring him under the mischief of section 138 of the Negotiable Instruments Act.In Rajesh Bajaj v. State of NCT of Delhi 1999 1 ALT (Crl.) 301, the apex court has held that as to whether the person in question was really in charge of and was responsible to the affairs of the company or not, and as to what functions, he was assigned in the affairs of the company and whether those functions could be considered sufficient to hold that he was in charge of the affairs of the company, are matters which have to be gone into during the trial. Their Lordships have pointed out that in a petition under section 482 of the Code of Criminal Procedure, it is not permissible to adopt a strictly hyper-technical approach and 'sieve the complaint through a colander of finest gauzes" for testing the ingredients of the offence alleged against the accused.