Sufficiency of material allegation can be gone into in course of trial of the case.

The 3rd accused in STC.No.899 of 2006 on the file of the learned Judicial Magistrate No.1, Attur is the petitioner herein. This Criminal Original Petition has been filed for quashing the criminal proceedings initiated against the petitioner herein and two other persons based on the private complaint of the respondent herein for alleged commission of an offence punishable under Section 138 read with Section 142 of the Negotiable Instruments Act. According to the complaint, M/s. Palanimurugan Sago Factory, arrayed as the first accused in the complaint is a partnership firm of which the second accused/Dhanasekaran and Mallika, the third accused/petitioner herein are partners. Contending that the above said firm, through its partners, borrowed a sum of Rs.7,50,000/- from the respondent/complainant on 15.01.2006 for its business and to discharge its pressing debts; that on the same day, Dhanasekaran/second accused, as a partner of the first accused firm, with the consent and knowledge of the third accused/petitioner herein issued three post-dated cheques, each for a sum of Rs.2,50,000/- drawn in favour of the respondent/complainant putting the date in all the three cheques as 25.05.2006; that the said cheques drawn on the account of the first accused firm maintained with the Lakshmi Vilas Bank Limited, Attur bearing cheque Nos.0081245, 0081246 and 0081247 when presented for collection through ICICI Bank, Attur branch on 21.06.2006 were returned unpaid citing the reason "exceeds arrangement"; that on receipt of the bankers memo dated 01.07.2006, a statutory notice was issued to all the three accused demanding payment of the amount covered by the returned cheques; that even after the receipt of the notice, the accused persons, including the petitioner herein, did not make payment till the expiry of the date allowed by the Statute and that on the other hand, the accused came up with a reply notice contining false and untenable averments.

2. The learned Judicial Magistrate No.1, Attur, after following necessary procedure and after recording the sworn statement of the respondent/complainant, took the complaint on file as STC.No.899/2006. After service of process on the petitioner herein, she has approached this court by way of the present petition stating that in case of an offence of dishonour of cheque, punishable under Section 138 of the Negotiable Instruments Act committed by a company (partnership firm in this case), unless necessary averments to bring the case of a particular director or partner as the case may be, within the ambit of Section 141(1) of the Negotiable Instruments Act, prosecution of such director or partner cannot be sustained.

3. This court heard the submissions made on both sides and perused the materials available on record.

4. The learned counsel for the petitioner in his arguments, reiterating the contentions made by the petitioner in the petition has submitted that the averments necessary for bringing the case against the petitioner, a partner in the first respondent firm, within the ambit of Section 141(1) of the Negotiable Instruments Act, have not been made in the complaint and hence the complaint should be quashed so far as the present petitioner is concerned. In support of his contention the learned counsel for the petitioner has relied on the judgment of the Honble Supreme Court in S.M.S. Pharmaceuticals Limited Vs.Neeta Bhalla reported in 2005(5) CTC 65. In the said case the Honble Supreme Court held that for launching prosecution against the director of a company or partner of a firm, necessary averments to the effect that such director or partner was in charge of the affairs of the company/firm and was responsible for the business/day to day affairs of the company/firm as on the date on which the cause of action arose should have been made and that in the absence of such averments, the complaint could be quashed.

5. Per contra, the learned counsel for the Respondent contended that even ap