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TMI Blog2007 (3) TMI 825X X X X Extracts X X X X X X X X Extracts X X X X ..... Company and during the course of transaction, the Company had issued three different cheques, which came to be dishonoured. Therefore, after issuance of notice, he has filed the said three complaints under section 138 of the Negotiable Instruments Act. In these petitions, the petitioner have prayed to quash those complaints. 4. Dr. Amee Yajnik, learned Advocate for the petitioner submitted that there is no allegation in the complaint that the present petitioner is looking after the administration, business and affairs of the accused no.1 company; that the petitioner has not signed the instruments in question and that the cheques were dishonoured in the year 2005, whereas the petitioner had resigned from the Company on 15th December, 2003. She, therefore, submitted that prima facie no offence is made out against the petitioner and therefore the complaints deserve to be quashed. 5. Mr.P.D. Bhate and Mrs. Hansaben Punani, learned APPs appearing for the State submitted that the petitioner was Additional Director of the Company and, therefore, at this stage, the complaint cannot be quashed and only in trial the innocence of the petitioner can be proved. They, therefore, submitte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ix months from the date on which it is drawn or within the period of its validity, whichever is earlier. [b] the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer of the cheque, within thirty days, of the receipt of information by him from the bank regarding the return of the cheque as unpaid, and [c] the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Explanation: For the purpose of this section debt or other liability meansa legally enforceable debt or other liability. 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... 9. In the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but the same principally relate to the purported offence made by the Company. With a view to make a Director of a Company vicariously liable for the acts of the Company, it was obligatory on the part of the complainant to make specific allegations as are required in law. 11. In the present case, the undisputed facts are that the petitioner had resigned as Additional Director of the accused no.1 company with effect from 15th December 2003; he has not signed the instruments in question; the instruments were dishonoured in the year 2005 and there are no averments in the complaint as to how and in what manner the petitioner was responsible for the conduct of the business of the Company or otherwise responsible to it in regard to its functioning. I am, therefore, of the view that the complaints become bad qua the petitioner, which deserve to be quashed. 12. In the premises aforesaid, these petitions are allowed. Criminal Cases No.400 of 2006, 401 of 2006 and 402 of 2006 and 403 of 2006 and the proceedings thereof pending before Metropolitan Magistrate, Court No.21, Ahmedabad are quashed and set aside. Rule is made absolute accordingly. 13. Before parting, it is required to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused . 14.2 The Hon'ble Apex Court in the case of State of Orissa anr. v. Saroj Kumar Sahoo reported in 2005(13) SCC 540(= (2006) 2 S.C.C. [Cri.] Page 272) in Para 10 has observed as under; 10. ..... Judicial process should n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accused person/s in the commission of the alleged offence. Before a person can be made vicariously liable and is summoned before the Court, strict compliance of the statutory requirements should be insisted. In terms of Section 200 of the Cr.P.C., the Court should take care to see that the complainant makes a statement on oath as to how the offence has been committed and as to how the accused persons are responsible therefor. On appropriate verification of the complaint, ultimately, if it is found by the Court concerned that the complaint is frivolous or otherwise mala fide, the same may be dismissed u/s. 203 of the Cr.P.C.. [5] Whether the accused is the signatory to the instrument in question or not. [6] There must be a specific averment in the complaint itself as regards the fact that the Payee of the cheque had issued the statutory Notice to the Drawer and that the Drawer has received the statutory Notice. The Court should insist for some formal proof in the form of acknowledgment receipt, unless, the complainant, while verifying the complaint on oath, states that the accused has deliberately evaded the service of Notice or otherwise. In the absence of such averment in t ..... 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