IMPORTANT POINT
Where in a case alleging dishonour of cheque against company there were clear allegations against both accused/appellants to the effect that they were officers and responsible for the affairs of the company, it was held inappropriate to quash proceedings against them.

JUDGMENT

Harjit Singh Bedi, J. —

1. Leave granted.

2. This judgment will dispose off Criminal Appeals arising out of SLP (Crl.) Nos.3074 and 3075 of 2006. The facts have been taken from the record of SLP (Crl.) No. 3074 of 2006. They are as under :

3. Tata Finance Limited, which had commercial dealings with the accused, filed a complaint under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter called the “Act”) alleging that the accused had issued two cheques dated 25th November 2001 and 18th December 2001, each for Rupees One Lakh, which had been dishonoured on 20th December 2001 with the remarks “Exceeds Arrangements”. Notice was issued to accused No.1 i.e. the Company, including accused No.2 Paresh P.Rajda, the Chairman and accused No.4 Vijay Shroff, a director of the Company and they appeared reluctantly before the court after bailable warrants had been issued. Accused Paresh Rajda thereupon moved an application that as per the averments made in the complaint itself, no case for summoning him had been made out as no overt act with regard to the issuance of the dishonoured cheques had been attributed to him. The High Court, however, vide its order dated 9th June 2004 directed that the application under Section 395 of the Code of Criminal Procedure, 1974 which had already been made before the Metropolitan Magistrate be decided at the first instance. The Magistrate, however, rejected the application on 18th October 2004 holding that he had no jurisdiction in the matter, as process under Section 395 of the Code had already been issued. It is in this circumstance that the accused once again moved the High Court. The High Court in its order dated 20th December 2005 held that the argument that the accused had been arrayed as such merely because he was a Director of the Company was wrong inasmuch as an over-all reading of the complaint showed that specific allegations had been levelled against him as being a responsible officer of the accused Company and therefore equally liable, and that if it was ultimately found that the accused had, in fact, no role to play, he would be entitled to an acquittal. The petition was accordingly dismissed. It is in this background that the present appeal is before us.

4. The learned counsel for the appellant has argued that a perusal of the complaint would show that no allegation whatsoever had been made against the accused and he had been arrayed in a mechanical manner, merely because he happened to be a Director of the company. He has, in particular, referred us to the provisions of Section 141 of the Act that if an offence was committed by a company, every person, who, at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, would be deemed to be guilty of the offence and would be liable to be proceeded against and as no such allegations had been made in the complaint, the issuance of process against the accused was not justified. In support of this argument, he has placed reliance on S.M.S.Pharmaceuticals Ltd. vs. Neeta Bhalla & Anr.,1 (2005) 8 SCC 89 and N.K. Wahi vs. Shekhar Singh & Ors.,2 (2007) 9 SCC 481. The learned counsel for the respondents has, however, submitted that it was not possible at this stage and without evidence to reach a conclusion as to the liability of the appellant and it was, therefore, appropriate that the matter be left to trial, as had been observed by the High Court. The learned counsel has also drawn our attention to paragraphs 2 and 8 of the complaint to contend that the allegations that the accused were, in fact, responsible officers of the Company and were also conducting its day-to-day activities, had been specifically made. It has also been pointed out that a great deal of material had been put on record to show that the accused company and its officers had issued several cheques to other organizations as well, which too had bounced, and that huge sums were due fro