R S AGARWAL (COL ) S Vs. ASHOK LEYLAND

JUDGEMENT

(1.) THE respondent herein filed a complaint under Sections 138 and 142 of the Negotiable Instruments Act, 1881 against the petitioner and others. According to the respondent, the accused M/s. Petrochemicals Limited, indulging in Petrochemicals business. It approached the complainant/respondent for lending money and executed two Hundies on 4.5.1995. According to the complainant, the accused issued a cheque on 28.6.1995 for a sum of Rs. 53,13,350/ -. The complainant presented the cheque for encashment through its bankers. But the same was returned unpaid by the bankers on 18.12.1995 with the endorsement 'exceeds arrangement'. The same was informed to the complainant by its bankers on 19.12.1995. Immediately, the complainant issued native dated 26.12.1995 demanding the amount within 15 days from the date of receipt of the notice. Though on the date of signing of the complaint, the notice was to served on the accused, in the sworn statement, it is specifically stated that the notice was received on 1.1.1996 by the accused. On the abovesaid pleadings, the respondent filed the complaint before the XVIII Metropolitan Magistrate, Saidapet, Chennai. The learned Magistrate took cognizance of the offence. Hence the accused Nos. 3, 4, 5, 7 and 12 in the complaint have filed the above Crl. O.P. to quash the proceedings in C.C. No. 2070 of 1996.

(2.) MR . Habibullah Basha, the learned Senior Counsel appearing for the petitioners has submitted that on a reading of the complaint it will be clear that even according to the respondent/complainant, the accused is only a company, namely, the first accused. Nothing has been averred in the complaint about the participation of the petitioners herein in the day -to -day affairs of the first accused -company, which is necessary according to Section 141 of the Negotiable Instruments Act. He has further submitted that though the petitioners have been arrayed as parties in the complaint, the complainant has treated the company alone as the accused and not others. In paragraph 7 of the petition it is stated that the petitioners 3 to 5 had been holding the post of Directors and lordly attending the Board meetings, and they were not concerned with the day -to -day affairs of the company. According to the complainant, the Chairman was representing the company. It is stated that the third petitioner resigned from the company on 27.3.1996 and the fourth petitioner resigned on 4.11.1995, and that the fifth petitioner resigned from the post of Director on 27.3.1996. He has also submitted that in the absence of any averments in the complaint in accordance with Section 141 of the said Act, the learned Magistrate ought not to have taken cognizance of the offence insofar as the petitioners are concerned. In support of his submission, the learned Senior Counsel has relied on the decision of this Court and the Apex Court.

(3.) MR . V. Padmanabhan, the learned Counsel appearing for the respondent/complainant has submitted that the fact that the petitioners were Directors of the Company during the relevant period itself is enough to implead them as accused and that is for the petitioners to prove that they have nothing to do with the offence, during the course of trial. The learned Counsel has relied on Section 191 Criminal Procedure Code in support of his submission that all the persons shown as accused should be construed as accused, and under Section 2(d) of the Cr.P.C., known and unknown persons can also be prayed as parties to the complaint. The learned Counsel has further submitted that this Court has to exercise the power under Section 482 Cr.P.C. sparingly, and in the present case, the complaint cannot be quashed at this stage, when the issue raised has to be gone into only at the time of trial. Moreover, the learned Counsel has relied on the decision of Janarthanam, J., reported in 1995 Crl.L.J. 2306 : [Vol. 2 DCTC 201] (N. Doraisamy v. M/s. Archana Enterprises), in support of his submission that merely because specific averments in the complaint as to the persons responsible to and incharge of the company in relation to the affairs of the company has not been made, the complaint need not be quashed.