HAMJEKHAN GULA MUJAWAR Vs. JAYDEEP BABURAO PATIL

JUDGEMENT

(1.) I have heard learned counsel appearing for the parties on the last date. Today the petition is kept for dictation of judgment. By this petition under Article 227 of the Constitution of India, the petitioners have taken an exception to the order issuing process passed by the learned Magistrate on a complaint filed by the 1st respondent alleging commission of offence under section 138 of the Negotiable Instruments Act, 1881. The order issuing process has been confirmed in revision application filed by the petitioners.

(2.) The learned counsel appearing for the petitioner has invited my attention to averments made in the complaint. He pointed out that the 2nd petitioner has been arraigned as accused No.5 on the allegation that the 2nd petitioner was liable to pay a sum of Rs.06,95,540/- to the 1st respondent and at the instance of the 2nd petitioner the 1st accused company (M/s.Ritza Wine Pvt. Ltd.) issued a cheque in the sum of Rs.06,95,540/- which was dishonoured. He pointed out that the 1st petitioner who has been arraigned as accused No.4 in the complaint has been described as a Director of the accused No.1 company. He submitted that on plain reading of the complaint, the 2nd petitioner cannot be held liable for an offence under section 138 of the said Act of 1881. Relying upon the decision of the Apex Court in the case of S.M.S. Pharmaceuticals Ltd. Vs. Neeta Bhalla & Anr. [(2005) 8 Supreme Court Cases 89] he submitted that as necessary averments have not been made in the complaint, the same was not maintainable against the 1st petitioner.

(3.) The learned counsel appearing for the 1st respondent invited my attention to another decision of the Apex Court in the case of N. Rangachari Vs. Bharat Sanchar Nigam Limited [2007 ALL MR (Cri.) 1437]. Relying upon the said decision, he submitted that the averments made in this petition are in confirmity with the requirement of section 141 of the said Act. He submitted that the Apex Court in the said decision has considered the case of SMS Pharmaceuticals (supra) and has accepted that it is not necessary that the averments in the complaint shall be in terms of the words used by the statute and it is not necessary precisely to state that the directors were incharge of and responsible for the conduct of the business of the company on the date on which the offence was committed. He, therefore, submitted that no interference was called for.