DILIP NEVATIA Vs. VILAS YASHWANT MITKAR

JUDGEMENT

(1.) ON 07th April, 2006, notice for final disposal at admission stage was issued. On 15th December, 2006 I heard the submissions of the learned Advocate appearing for the Applicant. As none appeared for the first Respondent, the Application was kept today. When the Application is called out today, none appears for the first Respondent.

(2.) THE Applicant has been arraigned as the accused No.3 in the complaint filed by the first Respondent under section 138 of the Negotiable Instruments Act, 1881. The contention of the Applicant is that process could not have been issued by the learned Magistrate against him as necessary averments as required by section 141 of the said Act of 1881 are not found in the complaint. The learned Advocate for the Applicant has invited my attention to the averments made in the complaint and the verification statement of the first Respondent. The case of the first Respondent is that he was forced to take voluntary retirement as per the voluntary retirement scheme offered by the first accused which is a Private Limited Company. According to the case of the first Respondent, three cheques were issued in his favour in the sum of Rs.75,000/-, Rs.99,425/- and Rs.75,000/- respec tively by the first accused in full and final settlement of the dues payable to the first Respondent under the voluntary retirement scheme. In paragraph No,5 of the complaint, it is alleged that the cheques were signed by the sec ond accused on the behalf of the first accused. The said cheques have been dishonoured.

(3.) PERUSAL of the complaint filed by the first Respondent shows that there are no averments made therein that at the time the offence was committed, the Applicant was in-charge of, and responsible for the conduct of the business of company (accused No.1). Admittedly the cheques issued on behalf of the accused No.1 Company have been signed by the accused No.2. The Apex Court has held that such averment is an essential requirement of section 141 and has to be made in the complaint. The Apex Court specifically held that without this averment being made in the complaint, the requirements of section 141 cannot be said to be satisfied. In view of law laid down by the Apex court, the order issuing process will have to be quashed in so far as the Applicant is concerned. The Sessions Court while deciding the Revision Application filed by the Applicant has referred to the aforesaid de cision of the Apex Court. However, the Sessions Court has completely misdirected itself by observing that it was duty of the employer to satisfy the claim of his employee who has taken voluntary retirement. The learned Judge has not at all considered the legal effect of the failure of the first Respondent to make averments as required by section 141 of the said Act of 1881. Therefore, this Application must succeed.