Mr. Gorge Joseph vs State of A.P.

Ramesh Madhav Bapat, J.—The petitioner herein is A-4 in C.C.No. 842 of 1998 which is pending on the file of the XI Metropolitan Magistrate, Secunderabad. The petitioner herein and others were prosecuted by the defacto complainant i.e. , R-2 herein for the offence punishable u/s 138 of the Negotiable Instruments Act.

The present petition has been filed by the petitioner herein on the ground that no specific allegations are made against him for dishonour of the cheque.

The learned counsel Mr. Milind G. Gokhale appearing on behalf of the petitioner herein read out the complaint filed by the defacto complaint and submitted that there is no allegation against the petitioner herein as required u/s 138 of the Negotiable Instruments Act and therefore the petition be quashed.

In the complaint in para (2) the allegation made by the complainant is as follows:

"The accused Nos.1 and 2 represented by Accused Nos.3 and 4 approached to the complainant company with the proposal for hire purchase facility and accordingly on accused representation with firm commitment, substantiating with the documents, accused proposal was accepted by complainant company and hire purchase agreement No. H 35 was entered into."

With these averments in the complaint, it was submitted that it cannot be said that the petitioner herein, who is A-4 in the said C.C., is liable to be prosecuted for an offence punishable u/s 138 of the Negotiable Instruments Act.

The learned counsel for the petitioner herein relied upon a ruling reported in B.LAKSHMI Vs. M/S.TRISHUL COAL SERVICES & TRANSPORTERS, HYDERABAD wherein the learned Single Judge of this Court held that unless the specific averment regarding the commission of the offence is made against the accused, the complaint is not maintainable.

The learned counsel further relied upon a ruling reported in K.JANAKI MANOHARAN & ANOTHER vs. GAYATRI SUGAR COMPLEX LTD., HYDERABAD & ANOTHER. The learned Single Judge of this Court also took the same view.

This Court has no hesitation in accepting the said proposal. But this Court is of the considered view that there are specific averments made against the petitioner herein regarding the commission of the offence. It is stated by the defacto complainant in his complaint that A-3 and A-4 approached the complainant company with the proposal for hire purchase facility. In both the cases referred to above, the learned Single Judges were pleased to hold that if the offence is committed by the company, it must be shown that one of the accused in the complaint was in charge of day to day business of the company. In the present case, the specific averment is made by the complainant that A-3 and A-4 approached the complainant company with the proposal for hire purchase facility. If at all, the petitioner herein was not responsible for day to day affairs of the company, then he had no business to approach the complainant company for hire purchase facility. It is true that in the given complaint it is not specifically stated that the petitioner herein was in charge of the day to day affairs of the company. The very words might not have been used. But it is averred in different words that the petitioner herein was responsible for day to day business of the company. Law does not accept that the words which are used in the section of law must be used while drafting the complaint by the complainant. But it is averred in different words, which gives the same meaning. It is sufficient compliance of section 138 of the Negotiable Instruments Act.

Under these circumstances, this Court holds that there is no force in the submissions made by the learned counsel for the petitioner herein. Hence, the criminal petition is dismissed.