- (1.) The petitioners are facing trial under Section 138 of Negotiable Instruments Act before the Magistrate. Quashing is sought only on the ground that complaint does not disclose that the petitioners were responsible for the management of the affairs of the company and they were in any way responsible for the financial dealings of the company. It is further stated that no specific averment is made with respect to the present petitioners in the complaint.
(2.) The petitioners are accused Nos. 3 to 6. It is stated in the complaint that A-3 to A-6 are the Directors of the company. It is further stated in the complaint, "towards the dues and in part payment thereof, the 2nd accused on behalf of the first accused with the consent of A-3 to A-6 got issued a cheque bearing No. 12774, dated 28-9-96 for Rs. 1,25,000.00 and bearing No. T. No. 12773 dt/- 28-9-96 for Rs. 1,25,000.00". It is submitted that, on the basis of the assertions made in the complaint no offence is made out. With regard to offences by Companies, Section 141 of the N.I. Act lays down that, every person who at the time the offence was committed was in charge of and was responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence and shall be liable to be proceeded against in accordance with the provisions of the Negotiable Instruments Act. Sub-section (2) of Section 141 makes it clear that, if it is proved that the offence had been committed with the consent or connivance of any person, he shall also be liable for punishment under Section 138. Reading sub-sections (1) and (2) of Section 141 together the following persons can be held guilty of offence under Section 138 :- (1) The company. (2) The person who at the time of offence was in charge of and was responsible to the company for the conduct of the business of the company. (3) Where any offence under the Negotiable Instruments Act had been committed by company and it was proved that the offence had been committed with the consent or connivance of such a person. (4) Where any neglect constituting the offence is attributable to any Director, Manager, Secretary or other officer of the company.However, there is exception under the proviso to Section 141 (1) where the onus is on such a person to show that the offence was committed without his knowledge.
(3.) In view of Section 141 it is clear that, if a person is responsible for any of the things done or responsible for committing any of the things mentioned in Section 141 (2), he is guilty of an offence under the Negotiable Instruments Act. The complaint in the present case discloses that the cheque was issued with the consent of the present petitioners. It also discloses that they were the Directors of the Company. Since the cheques which got bounced were issued with the consent of the petitioners who had been Directors at the relevant point of time, therefore, prima facie, there is an offence made out under Section 141. It is now well settled that, all the ingredients of an offence need not be stated in the complaint itself. However, the learned counsel for the petitioners relies on various judgments of this Court and also a judgment of the Supreme Court being Municipal Corporation of Delhi v. Ram Kishan, AIR 1983 SC 67 : 1983 Cri LJ 159 in which the Supreme Court held at page 162; of Cri. L. J. :- "10. It is, therefore, manifestly clear that proceedings against an accused in the initial stages can be quashed only if on the face of the complaint or the papers accompanying the same, no offence is constituted. In other words, the test is that taking the allegations and the complaint as they are, without adding or subtracting anything, if no offence is made out then the High Court will be justified in quashing the proceedings in exercise of its powers under Section 482 of the present Code. "But, while going through the complaint, as pointed out earlier, an offence is made out. Besides, I am fortified in my view by the judgment of Supreme Court in Rajesh Bajaj v. State NCT of Delhi 1999 (2) Supreme 442 : 1999 Cri LJ 1833 in which it has been held that, it is not necessary that a complaint should reproduce in verbatim all the ingredients of the offence. The Court has laid down that if factual foundation of the offence has been laid down then High Court should not hasten to quash the proceedings. Para 9 of the judgment lays down (at page 1835; of Cri LJ) :- "9. It is not necessary that a complainant should verbatim reproduce in the body of his complaint all the ingredients of the offence he is alleging. Nor is it necessary that the complainant should state in so many words that the intention of the accused was dishonest or fraudulent. Splitting up of the definition into different components of the offence to make a meticulous scrutiny, whether all the ingredients have been precisely spelled out in the complaint, is not the need at this stage. If factual foundation for the offence has been laid in the complaint the Court should not hasten to quash criminal proceedings during investigation stage merely on the premise that one or two ingredients have not been stated with details. For quashing an FIR (a step which is permitted only in extremely rare cases) the information in the complaint must be so bereft of even the basic facts which are absolutely necessary for making out the offence. In State of Haryana v. Bhajan Lal (1992 Suppl. (1) SCC 335 : (1992 Cri LJ 527) this Court laid down the premise on which the FIR can be quashed in rare cases.";