JUDGMENT
Vinod Prasad, J.
1. A set of quadruple revisionists – K.V. Augustian, Smt Cyara Paul Krishan Pillai Jayaram and Mrs. Shobha Jayaram, in the above two revisions have challenged the impugned order of summoning dated 7.3.2006 passed by VIII Additional Chief Judicial Magistrate, Court No. 34 , Agra in complaint case No. 212 of 2006 Ankit Kumar v. I.H.H.L and Ors., under Section 138 of Negotiable Instrument Act , herein after referred to as the Act. Since both the revisions arise out of the same complaint case and the order challenged in both the revisions is the same and so both the above revisions were directed to be connected with each other and are being disposed off by this common order.
2. The complainant’s allegations against the revisionists in bird eye view are that the complainant respondent No. 2 Ankit Kumar is the proprietor of M/S JIJI ASSOCIATES Situated at 2/60 Ram Nagar Colony , Agra. Accused No. 1 in the complaint India Household And Healthcare Ltd. (IHHL), New Delhi is a company and is the sole licensee dealing in Fast Moving Consumer Goods (FMCG) in oral care, skin care, etc. manufactured by L.G. Korea. IHHL has a Corporate office at Mahalingampuram, Chennai and it’s registered Office is at IHHL, No. 47, 8th Main, 4th Block, Jaya Nagar, Bangalore. Krishna Pillai Jayaram (revisionist) is the Chairman of IHHL with another accused Vijai Raghunath Singh as it’s Managing Director. Mrs. Shobha Jayaram ( Revisionist) & Mrs. Aishwarya Vijai Singh are the Directors, where as Cyrus Paul (revisionist) is the Executive Assistant, Shishir Kumar, is the Vice President, and one V. Ramanathan is the authorised signatory of the said IHHL. K.V. Augustin (revisionist) is the General Manager of the said company. All these persons are in charge and responsible for the conduct of the . business of the said company IHHL. The said company has appointed complainant Ankit Kumar, Proprietor of JIJI Associates, as the State Director/C & FA for U.P. ( West) and for State of Uttaranchal. The company IHHL took a deposit of Rs. 1 Crore from the complainant by way of security which was refundable. As the contract between the company and complainant stood terminated the company issued a Cheque No. 536129 dated 31.12.2005 signed by Cyra Paul, Mr. Shishir Kumar, Mr. V. Ramnathan, of ING Vysya Bank Ltd., Mylapore Branch, Chennai in favour of complainant’s Proprietary Firm by way of partial discharge of liability and debt. They also isused other post dated cheques. All the cheques were issued at the instructions of rest of the accused who are revisionists here. Cheque No. 536129 was deposited by the complainant in his ICICI Bank Ltd. Agra on 31.12.2005 but the same was returned to the complainant bounced land dishonoured on 8.1.2006 with bank endorsement ” Insufficient Funds”. In consonance with Section 138 of the Act the complainant dispatched notices to the accused persons on their correct addresses with acknowledgement due demanding the cheque amount from them within fifteen days from the date of service of notice upon them. The notices were duly received by the -accused persons as the complainant received back the acknowledgements duly endorsed. The accused failed to pay the cheque amount after the lapse of fifteen days.
3. The complainant, then filed a complaint against the above accused persons in the court of Additional Chief Judicial Magistrate Agra on 2.3.2006 as complaint case No. 212 of 2006, Ankit Kumar v. India Household & Health care Ltd. and Ors. under Section 138 of N.I. Act. Along with the complaint the complainant filed his affidavit supporting his complaint allegations. As documentary evidences the complainant filed photo copies of cheque, bank memo, copy of notices and post office receipts and produced originals of these documents for the perusal of the court at the time of argument on the question of summoning the accused persons.
4. Additional Chief Judicial Magistrate, Court No. 34 , Agra finding a prima facie case being made out against the accused persons summoned them for offence under Section 138 of N.I. Act vide his impugned order dated 7.3.2006 which has been questioned in these revisions with the prayer that the same be quashed.
5. I have heard learned Counsel for the revisionists and the learned Counsel for the respondent No. 2 complainant and the learned AGA in support and opposition of these revisions.
6. The contentions raised by the learned Counsel for the revisionists are two fold. Firstly, that the procedure of complaint case has not been followed by the Magistrate while summoning the accused as no statement of complainant was recorded under Section 200 Cr.P.C. nor the statement of his witnesses were recorded under Section 202 Cr.P.C. and hence the summoning order of the revisionist is bad in law and can not be sustained and deserves to be quashed. Secondly, he relied upon the judgment of the apex court reported in 12006 (1) JIC 264 S.M.S Pharmaceuticals Ltd. v. Neeta Bhalla and Ors. for the second limb of his argument that Director of a company can not be summoned unless there is averment made in the complaint that they are responsible for the discharge of the business of the company. He contended that on the averments made in the complaint it can not be said that the revisionists were responsible for the discharge of the business of the company and therefore their summoning order be quashed.
7. Learned Counsel for the respondent No. 2 and the learned AGA contrarily contended that both the contentions raised by the revisionists are devoid of substance and are against the facts of the case and the revisions are merit less and deserves to be dismissed.
8. I have considered the submissions raised by the rival counsels and have perused the complaint. I take up the second contention raised by the learned Counsel for the revisionist first that there is no averments in the complaint that the revisionists were responsible and were in charge of the business of the company. From the perusal of the complaint it is perceptibly clear that the revisionists are alleged to be the Chairman, Managing Director, Directors and Executive Assistant of the company IHHL. Their designations are specifically mentioned in the complaint with further averments that these accused persons are responsible for the discharge and conduct of the business of the company at the relevant time. It is mentioned in the complaint as follows:
6. That the accused Nos. 2, 3, 4, 5, 6, 7, and 8 were and continued to be in charge of and responsible to the company for the conduct of the business and affairs of the company, Accused No. 1 i.e. India Household & Healthcare Ltd. (IHHL) having It’s corporate Office at New No. 13,Mahlingapuram Road, Mahalingapuram , Chennai- 600034 and it’ s registered Office at 47, 8th Main, 4th Block, Jaya Nagar, Bangalore- 560011.
7. That the accused No. 1 to 8 claimed and represented that they were sole distributors for FMCG products in oral care, skin care, hair care, etc, manufactured by LG care Korea and also represented that their company was the sole distributor and licensee for the said product for India . In pursuance of these representations the Accused No. 1 had appointed the complainant Mr. Ankit Kumar , Proprietor JIJI Associates, 2/60 , Ram Nagar Colony, Civil Lines, Agra, as the State Director/C & FA for U.P. (West) and Uttaranchal Territories.
8. ….
9. ….
10. That the said cheque was signed by the accused Nos. 6, 7, 8 as authorized signatories of IHHL at the direction and on behalf of the accused 1 to 5.
9. From the above averments it is more than clear that the case of the complainant is that all the accused were in charge and responsible for the conduct of the business of the company. There is no denying of the fact that the complaint, like the FIR, is not an encyclopaedia. It should contain necessary details for making out offence alleged. It is neither examination-in-Chief nor cross examination . If the ingredients of the offence are mentioned in the complaint then that is sufficient for allowing the complaint to proceed and the complainant must get a chance to substantiate his allegations levelled at the stage of Section 244 Cr.P.C. Complaint in such cases can not be quashed and the prosecution can not be thwarted at the very inception of the case. Further the complaint in the present case contains all the details and therefore the offence is disclosed against the revisionist. So far as the ruling cited by the revisionists is concerns that does not help the revisionists because the answers given by the full bench of the Apex Court runs contrary to what has been canvassed by the revisionists. While approving it’s decision in the case of Monaben Ketanbhai Shah and Anr. v. State of Gujarat and Ors. it has been observed in the said decision of S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla and Ors. 2006 (1) JIC 264 by the Apex Court as follows:
The latest in the line is the judgment of this Court in Monaben Ketanbhai Shah and Anr. v. State of Gujarat and Ors. . It was observed as under:
4. It is not necessary to reproduce the language of Section 141 verbatim in the complaint since the complaint is required to be read as a whole. If the substance of the allegations made in the complaint fulfil the requirements of Section 141, the complaint has to proceed and is required to be tried with. It is also true that in construing a complaint a hyper- technical approach should not be adopted so as to quash the same. The laudable object of preventing bouncing of cheques and sustaining the credibility of commercial transactions resulting in enactment of Sections 138 and 141 has to be borne in mind. These provisions create a statutory presumption of dishonesty, exposing a person to criminal liability if payment is not made within the statutory period even after issue of notice. It is also true that the power of quashing is required to be exercised very sparingly and where, read as a whole, factual foundation for the offence has been laid in the complaint, it should not be quashed….
(Emphasis Supplied)
10. Further it has been held in S.M.S Pharmaceuticals (Supra) as follows:
20. In view of the above discussion, our answers to the questions posed in the Reference are as under:
(a) It is necessary to specifically aver in a complaint under Section 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.
(b) The answer to question posed in sub-para (b) has to be in negative. Merely being a director of a company is not sufficient to make the person liable under Section 141 of the Act. A director in a company cannot be deemed to be in charge of and responsible to the company for conduct of its business. The requirement of Section 141 is that the person sought to be made liable should be in charge of and responsible for the conduct of the business of the company at the relevant time. This has to be averred as a fact as there is no deemed liability of director in such cases.
(c) answer id question (c) has to be in affirmative. The question notes that the Managing Director or Joint Managing Director would be admittedly in charge of the company and responsible to the company for conduct of its business. When that is so, holders of such positions in a company become liable under Section 141 of the Act. By virtue of the office they hold as Managing Director or Joint Managing Director, these persons are in charge of and responsible for the conduct of business of the company. Therefore, they get covered under Section 141. So far as signatory of a cheque which is dishonoured is concerned, he is clearly responsible for the incriminating act and will be covered under Sub-section (2) of Section 141.
11. Reverting back to the present complaint, Accused No. 1 is the company, accused No. 2 Krishna Pillai Jayaram is the Chairman of the company , accused No. 3 and 5 are the Directors and responsible to the conduct of the business of the company, accused No. 4 Vijai Raghunath Singh is the Managing Director of the company, and accused No. 6, 7, and 8 have signed the cheque. Thus all the accused persons are liable under the Act. So far as two lady Directors are concerned it was submitted that they did not play active role but since the company dealt in beauty and skin care products invariably used by ladies it is difficult to accept the contention that the lady Directors have nothing to do with the business and affairs of the company. In the end the second contention of the revisionists is unmerited and is hereby repelled.
12. Now coming to the first contention of the revisionists that statements under Section 200 an 202 Cr.P.C. has not been recorded by the Magistrate, the said contention is also devoid of merit in as much as Section 145 of the Act provides giving of evidence on an affidavit. It provides that the evidence of the complainant and the witnesses can be given on an affidavit and if the court desires or on the application of the prosecution or the defence, the court can examine the witness on oath who has filed the affidavit and the affidavit shall be taken in evidence in the case subject to all just exceptions. In the present case complainant has given his affidavit in which he has supported his allegations of the complaint. Further taking of evidence under Section 202 Cr.P.C. is discretionary which on the facts of a particular case can even be dispensed with. Thus the first contention of the revisionists is also no ground to nip the prosecution into bud and quash the impugned summoning order of the revisionists.
13. The above revisions are merit less. They are dismissed and the stay order dated 22.3.2006 passed in Criminal Revision No. 1472 of 2006 K.V. Augustian and Ors. v. State of U.P. and Anr. stands vacated.