Nathan Industries vs M. Arulselvam

R. Regupathi, J.—The prayer in these petitions is to call for the records in C.C. Nos. 55 and 56 of 2008 on the file of Judicial Magistrate

No. II, Pondicherry, and quash the same in so far as the petitioners herein are concerned.

Learned Counsel for the petitioners, at the outset, states that he is not pressing the above petitions for petitioner Nos. 1 and 3 and he would

make his submissions only with reference to petitioner No. 4 viz., F.Marie Susairaj. By referring to the following portions from the complaint viz.,

''... A1 to A4 are partners in charge and responsible for the day to day affairs of the partnership firm'' and ''all the accused are in charge and

responsible for the day to day administration and affairs of the partnership firm'', he submits that excepting such general averments, no specific

allegation has been made against petitioner No. 4; in such circumstances, this is a fit case where the proceedings against the 4th petitioner are liable

to be quashed on the ground that the complaint lacks material particulars to proceed against her.

A. To substantiate such contention, learned Counsel relied on a decision of the supreme court in S.M.S. Pharmaceuticals Ltd. Vs. Neeta Bhalla

and Another, wherein, it has been observed thus:

...

(a) It is necessary to specifically aver in a complaint u/s 141 that at the time the offence was committed, the person accused was in charge of, and

responsible for the conduct of business of the company. This averment is an essential requirement of Section 141 and has to be made in a

complaint. Without this averment being made in a complaint, the requirements of Section 141 cannot be said to be satisfied.

... The averments must state that the person who is vicariously liable for commission of the offence of the Company both was in charge of and

was responsible for the conduct of the business of the Company. Requirements laid down therein must be read conjointly and not disjunctively.

When a legal fiction is raised, the ingredients therefore must be satisfied

B. Next, he referred to the decision reported in N.K. Wahi Vs. Shekhar Singh and Others, and adverted to the following observation of the Apex

Court,

To launch a prosecution, therefore, against the alleged Directors there must be a specific allegation in the complainant as to the part played by

them in the transaction. There should be clear and unambiguous allegation as to how the Directors are in-charge and responsible for the conduct of

the business of the company. The description should be clear. It is true that precise words from the provisions of the Act need not be reproduced

and the court can always come to a conclusion in facts of each case. But still, in the absence of any averment or specific evidence the net result

would be that complaint would not be entertainable.

Per contra, learned Counsel for the respondent submits that the name of the fourth petitioner has been mentioned in the complaint and

allegations are made to the effect that all the four accused of the partnership firm, who were in charge of the day to day affairs of the partnership

firm, committed the offence.

I have perused the materials on record with reference to the submissions made on either side. By giving interpretation to Sections 138 and 141

of the Negotiable Instruments Act, it has been repeatedly held by the Apex Court that general omnibus allegations may not be sufficient to proceed

against the accused and, to attract criminal liability, there must be specific allegations against each of the accused as well as the role played by them

in the transaction while acting in their respective capacities. On a careful analysis of the complaint, I do not find any specific allegation as against the

fourth accused; it follows that the proceedings pending against her are liable to be quashed.

In this view of the matter, the proceedings pending in C.C. Nos. 55 and 56 of 2008 on the file of Judicial Magistrate No. II, Pondicherry, are

quashed insofar as the 4th petitioner herein is concerned and the trial court to proceed with the cases against the other petitioners and conclude the

proceedings within a period of three months from to-day.

Petitions are accordingly ordered in respect of petitioner No. 4 and dismissed against the other petitioners with the above direction to the trial

court. Connected Miscellaneous Petitions are closed.