Dishonour of cheque

 The Apex Court has time and again held that 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."

In the complaint filed against a director of the company, the complainant has stated:

All the affairs of the accused (i.e. company) were being conducted and looked  after by the accused who is still looking after the business of the accused company.

Now read this judgement of the Apex Court:

. Before a person can be made vicariously liable, strict compliance of the statutory requirements would be insisted. Not only the averments made in paragraph 7 of the complaint petitions does not meet the said statutory requirements, the sworn statement of the witness made by the son of Respondent herein, does not contain any statement that Appellants were in charge of the business of the company. In a case where the court is required to issue summons which would put the accused to some sort of harassment, the court should insist strict compliance of the statutory requirements. In terms of Section 200 of the Code of Criminal procedure, the complainant is bound to make statements on oath as to how the offence has been committed and how the accused persons are responsible therefor. In the event, ultimately, the prosecution is found to be frivolous or otherwise mala fide, the court may direct registration of case against the complainant for mala fide prosecution of the accused. [CASE NO.: Appeal (crl.) 950 of 2006 PETITIONER: Sabitha Ramamurthy & Anr. RESPONDENT: R.B.S. Channabasavaradhya DATE OF JUDGMENT: 13/09/2006 BENCH: S.B. Sinha & Dalveer Bhandari]

In the above case, no sworn statement was made by the complainant and the process was issued against the accused just on the basis of the complaint. Know the propensity of magistrates to issue process without record the statement on oath u/s 200 of Cr.P.C., Justice Oka of Mumbai High Court stated:

As the approach of the learned Magistrate was completely erroneous, while exercising the power under Article 227 of the Constitution of India and under section 482 of the said Code, this Court will have to ensure that a litigant should not suffer due to lapse on the part of learned Magistrate. The order of process passed without recording proper verification will have to be naturally set aside but the complaint will have to be remanded and relegated to the stage of recording statement under section 200 of the said Code with a direction to the learned Magistrate to record the statement under section 200 of the Code afresh in accordance with law. This is a peculiar case where the learned Judge has not performed his duty. Merely because there are defects in the verification statement, the aforesaid course cannot be adopted. This course of sending the complainant back to the Magistrate is required to be adopted as the learned Magistrate has acted contrary to section 200 of the said Code.

So much so, that the Judge stated"

The Registrar, Judicial(I) will ensure that a copy of this judgement is circulated to all learned Metropolitan Magistrates in the City of Mumbai.

Please inform me what is the court of action now open to the accused. Go to Sessions Court or High Court and get the case remanded back to Magistrate's court. For information, this case was filed 10 years ago and is pending in his court without trial. In other words, neither the judgement of the Supreme Court (averment) nor Sec.200 of Cr.P.C. have been followed and the accused has appeared before the magistrate more than 60 times without hearing.