IMPORTANT POINT
Where complaint u/s. 138 of Negotiable Instruments Act described accused as Managing Director of Company on whose behalf cheque issued had bounced and other material showed that accused was the Managing Director, proceedings were not liable to be quashed merely because complaint failed to plea that accused was in charge of and responsible to Company for conduct of its business.

Vaman Rao. J. - These petition are filed under Section 482 of the Code of Criminal Procedure (Cr. P.C.) seeking quashing of the proceedings in C.C. Nos. 484, 479, 481, 482, 483, 480 and 768 of 1997 respectively on the file of IV Metropolitan Magistrate. Hyderabad in which the petitioner accused is facing charge under Section 138 of Negotiable Instruments Act (for short. the Act).

2. It appears that the Company, which is represented by the petitioner herein, had agreed to allot some of its shares by private placement out of promoters quota in favour of the complainant and received certain amounts. Later the accused failed to allot the said shares and under a mutual agreement, he agreed to repay the amounts received towards the price of shares. Accordingly, towards repayment of the said amount, a cheque for the requisite amount in each case was given by the Company, which is said to be represented by the accused, the complainant. The cheques in question were presented for realisation and they were returned on the ground of insufficiency of funds to the credit of the Company, which the accused represents. A notice under Section 138 of the Act was sent by the complainant and in spite of receipt of the notice as no payment was made the complaints as mentioned above have been filed.

3. Learned Counsel for the petitioner seeks quashing of the proceedings mainly on the ground that the requirements of Section 141 of the Act are not complied within the complaint. The contention is that the petitioner/accused is merely a Director of the Company and the complaint a copy of which has been filed with the petition does not mention anything as to how the petitioner-accused was in -charge of the affairs of the Company and was responsible to the Company. A reading of the complaint would show that there is no averment that the petitioner - accused was in-charge of and was responsible to the Company.

4. Learned Counsel for respondent No. 2. Mr.. P.R. Balarami Reddy, points out that the complaint itself has described the accused as the Managing Director of the Company, Apart from this, it is brought to the notice of this Court that the agreement, which is said to be the basis for the liability of the accused for payment, a copy of which has been filed with the relative petitions also describes the petitioner as Managing Director of the Company.

5. Learned Counsel for the respondent No. 2 then invites my attention to the reply sent on behalf of the accused to the notice sent by the complainant under Section 138 of the Act, a copy of which has been filed as material along with the counter filed by respondent No. 2. The authenticity of this reply is not disputed by the learned Counsel for the petitioner except stating that it was sent by the Company and not by the petitioner-accused in his personal capacity. Even -this document mentions that the Company, on whose behalf the reply was sent, is represented by the petitioner - accused as its Managing Director. The contention of the learned Counsel for respondent No. 2 is that when an accused happens to, be the Managing Director of the Company that in itself implies that he was in - charge of and was responsible to the company. The mere omission to specifically state so in the complaint and failure to reproduce the words occurring in Section 11 of the Act would not vitiate and render it liable to be quashed on the ground of noncompliance of Section 141 of the Act.

6. There is some force in the contention advanced by learned Counsel for respondent No. 2. It is true that Section 141 of the Act contemplates that where the Company happens to be the accused, then apart from the Company every person, who was in-charge of and was responsible to the Company, shall also be liable for the offence under Section 138 of the Act, besides the company itself.

7. Learned Counsel for the petitioner relying on the judgment of the Supreme Court in State of Haryana v. Brij lal Mittal1 contends that unless there is an averm