A person-in-charge of a company can be prosecuted for an offense under Section 138 of the Negotiable Instruments Act without the company being co-accused, as long as there is an averment in the complaint that the contravention was made by the company.

Kuldip Chand Sood, J.—By this judgment, I propose to dispose of these two petitions B.N. Mehta v. Kapoor Agencies and another (Criminal Revision No. 102 of 2000) and B.N. Mehta v. M/s. Kapoor Sons and others (Criminal Revision No. 103 of 2000) as both these petitions raise common questions of law based on similar facts.

2. These two petitions are directed against the orders of learned Sessions Judge, Shimla dated November 1, 1999 in Criminal Revision No. 25-S-10 of 1998 impugned in Criminal Revision No. 102 of 2002 and in Criminal Revision No. 26-S-10 of 1998 impugned in Criminal Revision No. 103 of 2002. Facts in brief.

3. B.N. Mehta, petitioner herein, (referred to accused hereinafter) was General Manager of the Shimla Central Cooperative Consumers Store Ltd., (Super Bazar), Shimla herein after referred to as "Super Bazar" at the relevant time. He issued certain cheques to the respondents, hereinafter referred to as complainant(s) in his capacity as General Manager of the Super Bazar. These cheques were dishonoured for want of sufficient funds in the account. The complainant issued notice to the accused within fifteen days of the dishonour of the said cheques but without any response. In the circumstances, the complainant(s) filed complaint(s) before the learned Judicial Magistrate 1st Class (Court No. 1) Shimla.

4. Learned Magistrate after recording the preliminary evidence, summoned the accused to answer the charges under Section 138 of the Negotiable Instruments Act (Act for short). The accused after appearing before the learned Magistrate, filed an application stating that he was the General Manager of the Super Bazar, a Cooperative Society, which stands liquidated and an official Liquidator has been appointed. He further submitted that he no longer was the General Manager of the Society and therefore, cannot be proceeded against. The learned Judicial Magistrate by his orders dated June, 10,1998 accepted the plea of the accused and discharged him. Learned Magistrate relying upon a judgment of the Madras High Court in K. Krishna Bai v. M/s. Arti Press Sibakasi 1, (1992) Banking Cases 361 (Madras) took a view that as the Society was not impleaded as co-accused, therefore, complaint against the accused alone was not maintainable. Dis-satisfied, the complainant filed a revision petition before the learned Sessions Judge, Shimla, Learned Sessions Judge relying upon Manimekalai v. Chapaldas Kalyanji Sanghvi, 1995 Cr.LJ. 1102 (Madras High Court) and R. Ramchandran v. Yerram Sesha Reddy and others, 1997 Cri.L.J. 1595 (A.P.) held that a person in charge of the affairs of a company, could be prosecuted for an offence under Section 138 of the Act without impleading the Company as co-accused and accordingly, set aside the orders of trial Magistrate. Learned trial magistrate was directed to try the case and decide it in accordance with law.

5. Aggrieved the accused is in revision petition.

6. These petitions were adjourned at the instance of the learned Counsel for the complainant on several occasions. Ultimately on August 22, 2002, the petitions were heard in the absence of the counsel for the complainant who did not appear in spite of several adjournments.

7. Mr. S.R. Chauhan, learned Counsel for the petitioner strenuously urged that the view taken by the learned Magistrate is correct view and in the absence of the Cooperative Society being a co-accused, the complaint against the petitioner/accused who was the General Manager of the Super Bazar was not maintainable.

8. In order to appreciate the controversy, the relevant provision of the Act may be noticed. Chapter XVII of the Act provides for penalties in case of dishonor of certain cheques for insufficiency of funds in the accounts. Section 138 contemplates that where a cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other l