IMPORTANT POINT
Dishonour of cheque—Offence by company—Specific role played by director qua the transaction need not be spelt out with particularity and by placing on record documentary material.

1. S.M.S. Pharmaceuticals Ltd. vs. Neeta Bhalla, (2005)8 SCC 89. (Para 9)

2. Gunmala Sales Private Limited and others vs. Navkar Infra Projects Private Limited and others, (2015)1 SCC 103. (Para 10)

3. N. Rangchari vs. BSNL, (2007)5 SCC 108. (Para 10)

4. Standard Chartered Bank vs. State of Maharashtra, 2016 Law Suit (SC) 344. (Para 12)

5. Mr. Rajeev Khandelwal v. The State of Maharashtra & Anr., 2013 All MR (Cri) 1946. (Para 12)

JUDGMENT

Rohit B. Deo, J.—This application, preferred under section 482 of the Criminal Procedure Code, 1973 (Code) is heard finally at the stage of admission with the consent of the parties.

2. The applicants – who are arrayed as accused 3 and 4 in Criminal Complaint 1224 of 2015 are seeking quashment of the order dated 8.4.2015 of issuance of process for offence punishable under section 138 of the Negotiable Instruments Act, 1981 (Act).

3. Shri R.P. Joshi, the learned counsel for the applicants has twin submissions to canvas to assail the order of issuance of process. The first submission is that the complaint lacks the basic averments which are sine qua non for the Magistrate to take cognizance of the offence punishable under section 138 of the Act. Elaborating the said submission, Shri R.P. Joshi, the learned counsel would urge that a bald averment that the applicants are partners and were in charge of the affairs of the firm, would not clothe the Magistrate with the jurisdiction to take cognizance in the absence of averments spelling out the specific role played by the partners qua the transaction. The other submission is that even if it is assumed, arguendo, that the complaint incorporates the basic averments, in the teeth of irrefutable and incontrovertible material on record indicating that the applicants –partners could not have been concerned with the issuance of the cheques, compelling the applicants to undergo the agony and trauma of trial would be an abuse of process of law.

4. Shri A.H. Lohiya, the learned counsel for the respondent would in rebuttal submit that if the complaint is read and understood holistically, the ingredients of section 138 read with section 141 of the Act stand established, at least prima facie, and the order of issuance of process is unexceptionable. Shri A.H. Lohia, the learned counsel would further submit that it is not necessary to spell out or elaborate the specific role of the partners in the transaction and it would suffice if the complaint asserts that the partners arrayed as accused are responsible to the firm for and are in charge of the affairs of the firm.

5. In the context of the rival submissions, it would be necessary to scrutinize the averments in the complaint. In paragraph 2, it is averred that accused 1 – firm is run and controlled by accused 2 to 4 who are personally involved in the day to day business affairs of the firm. It is further averred that the accused 2 to 4 used to purchase the goods and make the payments on behalf of the accused 1 – firm. It is asserted that accused 2 to 4 are authorized to make the payments and to sign the cheques on behalf of the accused 1 – firm and all the accused are jointly and severally liable for the liabilities and dues of the accused 1 – firm. Identical or similar assertions are reiterated in paragraphs 3 to 6 of the complaint.

6. In the context of the second submission canvassed by Shri R.P. Joshi, that there is unimpeachable and incontrovertible material on record to suggest that applicants – partners are not involved or concerned in / with the transaction or issuance of the cheques which are dishonoured, it would be necessary to consider the additional affidavit sworn by applicant 1 Shivani (sic Shivangi) Tushar Garg alongwith which several tax invoices are placed on record. The additional affidavit states that the complainant has instituted summary suit 37 of 2015 before the Principal Bench of this Court in its original jurisdiction against the accused 1 – firm in which the applicants