SUNIL KUMAR Vs. NAHATA FABRICS

JUDGEMENT

(1.) By way of filing the present petition under Section 482, Cr.P.C. the petitioner agitates validity of the order dated 29.07.2002 passed by the Chief Judl. Magistrate, Pali taking cognizance of offence under Section 138, Negotiable Instruments Act, 1881 (in short, 'the Act', hereinafter) against him as well as order dated 11.01.2005 passed by the Sessions Judge, Pali dismissing the revision petition filed by petitioner against order dated 29.07.2002.

(2.) The case set out by the petitioner is that as per complaint, disputed cheques which were dishonoured were signed by non-petitioner No.3 on behalf of company (non-petitioner No.2). It is submitted that perusal of the complaint filed by non-petitioner No.1 and statement of the complainant recorded under Section 200, Cr.P.C, makes it clear that there is no allegation against the petitioner either that he has direct control over the management of the company or that he is working as in-charge of the company. The petitioner is nominated to look after the interest of the loaner. It is submitted that neither the work order was given by the petitioner nor material was received by him and thus he has no liability for making the payments and as such cheques were not issued by him. In such circumstances, according to the petitioner, no action could be taken against him under section 138 of the Act.

(3.) It is contended by learned counsel for the petitioner that the trial Court without considering the vital ingredients for making out case under Section 138 against the petitioner has committed grave error in taking cognizance of offence, against the petitioner. Learned counsel for the petitioner invited attention of the Court towards Section 141 of the Act and judgment rendered by the Supreme Court in the case of Monaben Ketanbhai Shah & Another v. State of Gujarat & Others. Learned counsel for the petitioner has also invited attention of the Court towards judgment of the Supreme Court in the case of S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla & Another in which, it is categorically held that where the allegations in complaint or charge-sheet do not constitute an offence the complaint is required to be dismissed. It is also held that in complaint there must be averments that at the time of the offence alleged the accused was in-charge and responsible for the conduct of the business of the company and being Director of the company alone is not sufficient.