The necessity of specific averments in the complaint to establish the liability of the accused under Section 141 of the Negotiable Instruments Act.

A. K. SIKRI, J. (ORAL) : The petitioner is summoned in the complaint filed by respondent No. 2 herein under Section 138 of the Negotiable Instruments Act in which the petitioner has been arrayed as accused No.2. As per the averments made in the said complaint, accused No.1, namely, Bankman Cooperative Urban (Salary Earners) Non-Agriculture Thrift and Credit Society Ltd. (hereinafter referred to as the `Society') had issued cheques for repayment of loan/deposit to the respondent herein and those cheques were dishonoured on presentation. Total amount of these cheques comes to Rs. 2,83,500/-. Petitioner No.2 is the Secretary of the said Society. In this petition filed by the petitioner he submits that there is not even a whisper about the petitioner being in-charge of the affairs of said Society (accused No.1) and, therefore, the petitioner could not have been made party as ingredients of Section 141 of the Negotiable Instruments Act are not satisfied.

2. Submission of the learned counsel for the petitioner that in the complaint there are no averments qua him appears to be correct. No doubt, in the cause title wherein the petitioner is impleaded as accused No.2, it is mentioned that the is the Secretary of the Society/accused No.1. However, there are no imputations against the petitioner in the entire complaint except averment in para 5 to the effect that the respondent herein/complainant had informed him about the dishonour of the cheque. As per the provisions of Section 141 of the Negotiable Instruments Act, any person who is in-charge of the affairs of the company/body corporate can be made accused. But there has to be averments in this behalf in the complaint and onus is upon the complainant, in the first instance, to satisfy about the presence of this ingredient. Supreme Court in the case of S.M.S. Pharmaceutical Ltd. v. Neeta Bhalla and Another, 2005 [3] JCC [NI] 203 has settled the law on this aspect. This is what was observed in paras 7 and 8 of the said judgment :

"7. As the points of reference will show, the question for consideration is what should be the averments in a complaint under Section 138 and 141. Process on a complaint under Section 138 starts normally on basis of a written complaint which is placed before the Magistrate. The Magistrate considers the complaint as per provisions of Section 200 to 204 of the Code of Criminal Procedure. The question of requirement of averments in a complaint has to be considered on the basis of provisions contained in Section 138 and 141 of the Negotiable Instruments Act read in the light of powers of a Magistrate referred to in Section 200 to 204 of the Code of Criminal Procedure. The fact that a Magistrate has to consider the complaint before issuing process and he has power to reject it at the threshold, suggests that a complaint should make out a case for issue of process.

8. As to what should be the averments in a complaint, assumes importance in view of the fact that, at the stage of issuance of process, the Magistrate will have before him only the complaint and the accompanying documents. A person who is sought to be made accused has no right to produce any documents or evidence in defence at that state. Even the stage of framing of charge the accused has no such right and a Magistrate cannot be asked to look into the documents produced by an accused at that stage, State of Orissa v. Debendra Nath Padhi, 2005 (1) SCC 568."

3. Commenting upon the nature of averments that a criminal complaint should carry, is also discussed in detail from para 15 onward in the aforesaid judgment taking stock of various judgments of different High Courts as well as in its own judgments including the case of Monaben Ketanbhai Shah v. State of Gujarat, 2004 (7) SCC 15 wherein it was held that the primary responsibility is on the complainant to make necessary averments in the complaint so as to make the accused vicariously liable for fastening the criminal liability. That was a case of