IMPORTANT POINT
Averment in complaint that directors of company which issued the cheque and which was dishonoured were responsible for conduct of business of company is enough to prosecute them for offence under Section 138 r/w 141 of N.I. Act.

P.K. Bhasin, J.—By this petition under Section 482 of the Code of Criminal Procedure, 1973, the petitioners have prayed for setting aside the order dated 29.3.2007 passed by the learned Metropolitan Magistrate, in complaint case No. 669/2007 whereby the petitioners and respondents No. 2 and 3 were summoned for the offence under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as ‘the Act’) and also for quashing the said complaint.

2. The Respondent No. l complainant filed a complaint case against M/s. Vasu Tech Ltd., respondent No. 2 herein and its Directors, who are the petitioners No.1 and 2, as well as respondent No. 3 herein under Section 138 of the Act. It is alleged by the complainant-respondent No. 1 in the complaint that he entered into an agreement to sell with petitioner No. 3 herein (which is an HUF firm of which petitioner No. 1 is the karta and which was arrayed as accused No. 5 in the complaint), in respect of one flat. However at the time of execution of the flat buyer agreement, that flat was on rent with some tenant. Accused No. 2-4 arrayed in the complaint, are all family members and accused No. 1 (M/s Vasu Tech Ltd.) and 5 were their family concerns. Accused No. 2 to 4 had requested the complainant that their family concern was in dire need of money for some technological development and urged the complainant not to claim rent amounting to Rs.2,50,000 per month for the said flat for the time being from the tenant and that request the complainant accepted. To secure the debt on account of rent due from the tenant, the accused Company, respondent No.2 herein, issued a post dated cheque for Rs. 35,00,000. However on presentation to the bank of the Company, the said cheque was dishonoured for the reason “insufficient funds”. After serving statutory demand notice on the petitioners as well as respondents No.2 & 3, the respondent No.1 filed a criminal complaint in Court in respect of the said dishonoured cheque. The learned Metropolitan Magistrate took cognizance for the offence under Section 138 of the Act and vide his order dated 29.3.2007 summoned the petitioners herein as well as respondents No. 2 and 3 as accused. Feeling aggrieved, the petitioners have filed this petition.

3. The learned counsel for the petitioners submitted that since petitioners Nos.1 & 2 are neither the signatories of the agreement to sell between the complainant and petitioner No.3 (HUF) nor have they signed the dishonoured cheque and since the so called understanding regarding the rent payment arrived at between the complainant respondent No.1 and respondent No. 2 the accused Company, was without their consent or knowledge and the cheque in dispute was also issued by respondent No.2 Company without their consent, they are not liable for the dishonour of the cheque as Directors of the said Company. It was further contended that the complaint does not contain specific averments from which it could be inferred that the petitioners were in any way in-charge of and managing day-to-day affairs of the Company, namely, M/s. Vasu Tech Ltd. and, therefore, they could not have been summoned as accused in respect of the offence allegedly committed by the said Company. In support of the said contention the learned counsel for the petitioners has placed reliance upon the judgments of the Apex Court in K. Srikanth Singh v. M/s North East Securities Ltd. & Anr.1; and Saroj Kumar Poddar v. State & Anr.2 Further reliance has been placed on some judgments of this Court also which are reported as in J.N. Bhatia & Ors. v. State &Anr.3 Everest Advertising Pvt. Ltd. v. State & Ors.4; and Rachna Kapoor v. State & Ors.5 As far as petitioner No.3 is concerned, learned counsel argued that against this petitioner, which is an HUF; there is no averment at all in the complaint as to how it could be prosecuted for the dishonouring of the cheque issued by the accused Company, respondent No.2 herein, and consequently the complain