ORDER
B. Seshasayana Reddy, J.
1. This Criminal Revision Case is directed against the order dated 10-9-2003 passed in Crl. M.P. No. 5968 of 2003 in C.C. No. 1172 of 2001 on the file of XVII Metropolitan Magistrate, Hyderabad.
2. The petitioner and the 1st respondent herein are A-3 and the complainant respectively in C.C. No. 1172 of 2001. The complainant was one of the partners in a partnership firm by name M/s. Sriven Incorporation. The petitioner herein, her husband-Rangaraju Satish Kumar and one Smt. R. Sobha are the other partners. The complainant retired from the partnership firm and a retirement deed came to be executed on 6-6-2001. In nutshell, there were four partners viz., Rangaraju Satish Kumar (A-2), Smt. R. Sudha Madhuri Devi (petitioner herein-A3), Smt. R. Sobha and Smt. Kotamgari Sudha (complainant). Out of four, two of them (K. Sudha and R. Sobha) retired from the partnership firm and a deed of retirement came to be executed on 6-6-2001. The retiring partners were paid certain amounts by way of cheques towards their capital balance. After retirement of two partners, the partnership firm came to be reconstituted with the other two partners who are the petitioner and her husband. The shares in the profit and loss have been readjusted between her and her husband in the ratio of 90 : 10. The complainant presented cheques for encashment. Of the cheques presented by him, a cheque bearing No. 755702 for Rs. 2,27,790-34 came to be dishonoured. Consequently the complainant issued a statutory notice to the firm and petitioner's husband (A2) and filed the complaint before the XVII Metropolitan Magistrate, Hyderabad. The learned Magistrate took the complaint on file as C.C. 1172 of 2001 and issued process. The petitioner herein who is A3 in C.C. 1172 of 2001 entered appearance and filed C.M.P. No. 5968 of 2003 seeking dismissal of the complaint in view of the judgment of this Court in Mukesh Gupta v. Kabsons Gas Equipment Limited, (2003) 1 Andh LD (Cri) 261 : (2003 Cri LJ 164). The learned Magistrate on hearing counsel for both the parties dismissed the application by order dated 10-9-2003. Feeling aggrieved by the order, Smt. Sudha Maduri Devi (A3) has filed this Criminal Revision Case.
3. Learned counsel appearing for the petitioner submits that the acquisitions and allegations made in the complaint filed by R1 against the petitioner are vague and there are no specific allegations/acquisitions as such made against the petitioner, it is the submission of the learned counsel for the petitioner that the acquisitions/allegations made in the complaint must be clear, unambiguous and specific against each of the accused and such allegations must reveal that each of the accused was incharge of and was responsible to the partnership firm for the conduct of its business at the material time when the offence was committed by the partnership firm. It is also submitted by him that there is no averment in the complaint that the cheque in question has been issued with the consent of the petitioner and that mere repeating the words mentioned in S. 141 of N.I. Act would not be sufficient and that there must be something more clearly stated in the complaint to make the petitioner liable for the offence Under Section 138 of N.I. Act. He placed reliance on the following decisions :
1) B. Lakshmi v. Trishul Coal Services & Transporters, (1997) 4 Crimes 157 : (1997 Cri LJ 3616)
2) P. Ravinder Reddy v. NCC Finance Ltd., (1998) 1 Andh LT (Crl) 426
3) Neeta Bhalla (A-4) v. S.M.S. Pharmaceuticals Ltd., Hyderabad, (2002) 2 Crimes 89 (Andh Pra)
4) Mukesh Gupta v. Kabsons Gas Equipment Limited, (2003) 1 Andh LD (Cri) 261 ; (2003 Cri LJ 164).
4. In B. Lakshmi's case (1997 Cri LJ 3616) (Andh Pra) it has been held that every person who was incharge and responsible for affairs and conduct of business of Company or firm at the time alleged offence was committed would be liable.
5. In P. Ravinder Reddy's case (1998 (1) Andh LT (Cri) 426) it has been held that in the absence of the allegations in the complaint that accused were also incharge and responsible for the business of the 1st accused-company, the criminal proceedings initiated against them, definitely amount to abuse of process of the Court and as such, the criminal proceedings are liable to be quashed.
6. In Neeta Bhalla's case it has been held that plain reading of Section 141 of the Act would make it clear that in case of an offence under Section 138 of the Act has been committed by the company, not only the company but every person who, at the time the offence was committed, was incharge of, and was responsible to the company for the conduct of its business shall also be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. Sub-section (2) of Section 141 of the Act would further make it clear that in case of an offence committed by a company, not only the company but all its Directors, Managers, Secretary or other officers of the company shall also be deemed to be guilty of the offence and shall also be liable to be proceeded against and punished accordingly, provided the offence has been committed by the company with the consent or connivance of, or is attributable to, any neglect on their part. It is further held that the accusation against each of the Director/person/accused must be specific and unambiguous. The role played by each of the accused must be clearly stated in the complaint.
7. In Mukesh Gupta's case (2003 Cri LJ 164) (Andh Pra) it has been held that a mere general allegation made against the accused that they connived with each other and got the cheque issued is not sufficient to make them liable for the offence under Section 138 of the Negotiable Instruments Act.
8. Learned counsel appearing for RI (complainant) submits that the allegations and acquisitions made in the complaint must be read as a whole and taken it at its face value, and it is not necessary to repeat the magic words contained in Section 141 of the Act and it would be enough if the cumulative effect of the allegations revealed the offence punishable Under Section 138 of N.I. Act. Reliance was placed on the decision of our High Court in K. Subramanian v. Kamakshi Extractions, (1999) 1 Andh LT (Cri) 660 : (1999 Cri LJ 4231).
9. The crucial question that arises for consideration in this instant case is as to whether the complaint filed by RI (complainant) satisfies the requirements in law. At this stage, it would be appropriate to notice Section 141 of N.I. Act :
'Section 141 Offences by Companies--
(1) If the person committing an offence under Section 138 is a company, 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, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly :
Provided that nothing contained in this sub-section shall render any person liable to punishment if he proves that the offence was committed without his knowledge, or that he had exercised all due diligence to prevent the commission of such offence.
(2) Notwithstanding anything contained in Sub-section (1), where any offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall be liable to be proceeded against and punished accordingly.
Explanation.-- For the purposes of this section--
(a) 'company' means any body corporate and includes a firm or other association of individuals; and
(b) 'director', in relation to a firm, means a partner in the firm.'
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. It has been held in K. Subramanian v. Kamakshi Extractions (1999 Cri LJ 4231) (Andh Pra), 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 N.I. Act. The question is -- whether the cheque in question came to be issued with the consent of the present petitioner? The circumstances under which the cheque in question was issued are detailed in paras (3) and (4) of the complaint. For better understanding I may reproduce the same and they read as follows :
'3. The complainant most respectfully submits that the complainant was a partner in the firm of Accused No. 1 along with other partners since 2-12-98. Under the terms and conditions, the complainant was entitled to share of 33% in the profit and loss of the firm. The day-to-day affairs of the accused No. 1 were looked after by Accused No. 2. Complainant further submits that the complainant had opted voluntarily for retirement under the deed of retirement dated 6-6-2001 signed by all partners of the firm after giving due and requisite notice to the firm of the intention of the complainant to retire from the firm.
4. Complainant submits that under the Deed of Retirement dated 6-6-2001 executed by and between the continuing partners viz., Accused 2 and 3 and the complainant and another partner, since retired, the complainants capital balance was worked out to 7,55,799-34 paise, to be paid in 3 instalments by way of cheques. The accused No. 1-firm represented by Accused No. 2 who issued cheque No. 558050 dated 15-6-01 for Rs. 3 lakhs and cheque No. 755701 dated 30-6-2001 for Rs. 2,28,000/- both cheques drawn on S.B.H., Baghlingampalli Branch, Hyderabad were honoured while the cheque No. 755702 for Rs. 2,27,790-34 paise dated 21-7-2001 drawn on S.B.H., Baghlingampalli Branch, Hyderabad, was dishonoured on presentation on the ground 'Payment stopped by Drawer' as could be seen from the Memo of the Bank dated 2-8-2001.'
10. The complainant enclosed copy of the retirement deed to the complaint. As per the terms in the retirement deed, R1 (complainant) agreed to receive Rs. 7,55,791/-in three instalments towards his capital balance. After retirement of the complainant and Smt. R. Shobha from the partnership firm, shares in the profit and loss in the partnership firm have been readjusted between the petitioner (A3) and her husband (A2) in the ratio of 10 : 90. All the partners including the petitioner is a signatory to the retirement deed. The details of cheques issued in favour of the complainant are mentioned in Clause (2) of the retirement dead. For better appreciation I may refer the terms of the retirement deed and they are read as follows :
'1. That the Partner Nos. 3, 4 are retiring from the firm voluntarily with effect from the closure of business hours on the 6th June, 2001.
2. The capital balance of the retiring partner No. 1 Ms. Kotamraju Sudha which has been worked out to Rs. 7,55,790.34 (Rupees Seven lakhs fifty five thousand seven hundred and ninety rupees thirtyfour paise only) on mutual terms shall be repaid in three instalments by way of cheques as hereunder :--
a. Chq. No. 558050 for Rs. 3,00,000 (Rupees Three Lakhs only) dt. 15-6-2001 drawn on State Bank of Hyderabad, Baghlingampalli Branch, Hyderabad-500044 towards repayment of interest free loan.
b. Chq. No. 755701 for Rs. 2,28,000/-(Rupees Two Lakhs Twenty eight thousand only) dt. 30-6-2001, drawn on State Bank of Hyderabad, Baghlingampalli Branch, Hyderabad-500044 which is second instalment of the Capital bearing an interest @ 18% p.a. (Post-dated Chq. issued on 7-6-2001).
c. Chq. No. 755702 for Rs. 2,27,790.34 paise (Rupees Two lakhs twenty seven thousand seven hundred and ninety rupees thirtyfour paise only) dt. 31-7-2001, drawn on State Bank of Hyderabad, Baghlingampally Branch, Hyderabad-500044 which is third instalment of the Capital bearing an interest @ 18% p.a. (Post-dated cheque issued on 7-6-2001).'
Of the three cheques referred to above, two cheques were honoured whereas the third cheque was dishonoured which necessitated the complainant to file the complaint. The averments in the complaint and the terms and conditions of the retirement deed, prima facie, establish that the cheque in question has been issued with the consent of the petitioner (A3) to the 1st respondent (complainant).
11. 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 of N.I. Act. The material brought on record, prima facie, establishes that the cheque in question has been issued to the 1st respondent (complainant) with the consent of the present petitioner (A3). It is now well settled that all the ingredients of the offence need not be stated in the complaint itself. The Supreme Court in Rajesh Bajaj v. State NCT of Delhi, (1999) 2 Supreme 442 : (1999 Cri LJ 1833) has held that it is not necessary that a complaint should reproduce verbatim all the ingredients of the offence. It is useful to refer the relevant portion of the judgment and it reads as follows :--
'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 AIR SCW 237 : (1992 Cri LJ 527) (supra), this Court laid down the premise on which the FIR can be quashed in rare cases.'
12. For all the above reasons, I do not find any merit in this Criminal Revision Case and the same is dismissed confirming the order dated 10-9-2003 passed in Cri. M.P. No. 5968 of 2003 in C.C. No. 1172 of 2001 on the file of XVII Metropolitan Magistrate, Hyderabad.