1. 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 ie., R-2 herein
for the offence punishable under section 138 of the Negotiable Instruments
2. 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.
3. 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
under section 138 of the Negotiable Instruments Act and therefore the
petition be quashed.
4. In the
complaint in para (2) the allegation made by the complainant is as follows:
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."
5. 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 under section 138 of the Negotiable
6. 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.
7. 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.
8. 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.
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.