Judgment 1. Heard the parties. 2. Petitioners have filed this application for quashing the order, dated 16.4.2005, passed by the Additional Sessions Judge, V, Patna, in Criminal Revision No. 499 of 2003, whereby the order, dated 18.6.2003, passed by the Judicial Magistrate, 1st Class, Patna, in Complaint Case No. 89(C) of 1995 has been affirmed. By order, dated 18.6.2003, the Judicial Magistrate has rejected petitioners application for discharge filed under Sec. 245 of the Criminal Procedure Code. 3. Petitioner no. 1 is M/s Delta Composite Film (Private) Limited, which is a private limited company registered under the Companies Act, petitioner no. 2, Ajay Kumar, is the Managing Director of petitioner no. 1 and petitioner no. 3 is the Member of Board of Directors of the said Company (petitioner no. 1). 4. Complaint Case 89(C) of 1995 was filed by the Bihar State Financial Corporation Ltd., Patliputra, East Branch, Nasheman Bhawan, Dakbunglow Road, Patna, through Rajendra Prasad Singh, Branch Manager, alleging that the complainant used to provide term loan the complainant used to provide term loan to applicant entrepreneurs for establishing medium scale and small scale industries. The accused persons approached the complainant to get financial assistance by way of term loan amounting to Rs. 37.14 lacs. Rs. 36,6,934/- was sanctioned and granted by the complainant in favour of the accused persons, but, they failed to repay the loan. The loan amount increased to Rs. 54,06,683/- till the date 25.11.1994, including the interest. In spite of several notices, the loan was not paid. The complainant, Bihar State Financial Corporation Limited in exercise of jurisdiction under Sec. 29 of the Bihar State Financial Corporation Act directed the accused persons to refund the entire loan amount. The accused persons issued nine cheques to the value of Rs. 13/- lacs. Out of those nine cheques, three cheques of different dates of different amount were presented before the Bank, but, they were dishonoured on the ground that account of the company was closed and it has been transferred to the Punjab National Bank. it has been alleged that accused persons who are the company, its Director and Member of its Board have intentionally issued cheques knowing well that there is no sufficient fund for honouring these cheques, as such, they have committed offence under Sec. 418 of the Indian Penal Code and Sec. 138 of the Negotiable Instrument Act. it has been alleged that accused persons who are the company, its Director and Member of its Board have intentionally issued cheques knowing well that there is no sufficient fund for honouring these cheques, as such, they have committed offence under Sec. 418 of the Indian Penal Code and Sec. 138 of the Negotiable Instrument Act. It has also been alleged that under the provisions of Negotiable Instrument Act a legal notice was served on the accused persons on 26.1.1995 for compliance, but, it was not done. On such Negation cognizance was taken by the Judicial Magistrate, after holding enquiry under Section 202 of the Criminal Procedure Code. 5. The cheques which are alleged to have been dishonoured, their details is given in the complaint petition as (a) Cheque No. 333758 of the State Bank of India, Fatuha amounting to Rs. 1,50,000/- dated 28.11.1994, (b) cheque no. 333759 of the State Bank of India, Fatuha, amounting to Rs. 75,000/-, dated 15.12.1994 and (c) cheque no. 333760 of the State Bank of India, Fatuha, amounting of Rs. 1,00,000/- dated 31.12.1994, total amount in all three cheques was Rs. 3,25,000/-. Petitioners filed their application for discharge on the ground that there is no sufficient material or legal evidence to frame charge against the accused. It was dismissed by order, dated 18.6.2003. Criminal Revision No. 499 of 2003 was preferred by petitioner no. 1, M/s Delta Composite Film (Private) Limited, and other petitioners also filed revision but that was dismissed on the ground of delay. So far Criminal Revision No. 499 of 2003 is concerned, it was dismissed by the impugned order, dated 18.6.2003. 6. The ground which has been taken by the petitioners for the discharge is that during the pre-charge evidence adduced by the complainant, the prosecution witnesses have admitied that petitioners 2 and 3, Ajay Kumar and Triyogi Narayan Singh, have played no role in issuance of the cheque and they were not in the helm of affairs of the accused company. Witnesses have also admitted that the petitioners have been dragged into the case for no fault on their part. Further, it has been stated that the evidence given by the witnesses shows that accused nos. 1 and 2 deposited money amounting to Rs. 4,26,000/- which is much more than the value of dishonoured cheque amounting to Rs, 3,25,000/-. Witnesses have also admitted that the petitioners have been dragged into the case for no fault on their part. Further, it has been stated that the evidence given by the witnesses shows that accused nos. 1 and 2 deposited money amounting to Rs. 4,26,000/- which is much more than the value of dishonoured cheque amounting to Rs, 3,25,000/-. Since the money has already been deposited and accepted by the complainant, Bihar State Financial Corporation, in lieu of the bounced cheques, the accused persons should be discharged. Further, it has been stated that petitioners 2 and 3 had retired from the Board of Directors on 12th April, 1994, and the bounced cheques were issued on 29.11.1994, 14.12.1994 and 31.12.1994, as such, they have played no roles in issuance of the cheques. In the entire complaint petition, no specific allegation has been made against petitioner nos. 2 and 3. The complaint petition is conspicuously silent about the involvement of petitioner nos. 2 and 3 in the helms of affair of the company at the time when the questioned cheques were issued. In the given facts, petitioners 1 and 2 can not be held responsible for committing an offence under Sec. 138 of the Negotiable Instrument Act. The complaint as against petitioners 2 and 3 can not be maintained under Sections 141 and 142 of the Negotiable Instrument Act. 7. Sec. 141 of the Negotiable Instrument Act, 1881, reads as follows hereunder: "Offences by companies:- (1) If the person committing an offence under Sec. 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 persons liable to punishment if he proves that the offence was committed without his knowledge, or that he had exercised all the 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 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 also be deemed to be guilty of that offence and shall be liable to be proceeded against and punishment accordingly. Explanation-tor 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 8. A reading of sub section (1) of Sec. 141 of the Negotiable Instrument Act indicates that when offence is committed by a company under Sec. 138 of the Act every person who at the time of the commission of offence was incharge of and responsible for the conduct of the duties of the company as well as the company shall be guilty of offence and liable to be proceeded against prosecuted and punished. 9. On perusal of the complaint it is apparent that no specific allegation and averment satisfying the ingredients of Sec. 141 of the Act are present in the complaint. In the given circumstance, it can not be said that such complaint is maintainable as against the petitioners 2 and 3 under Sections 138, 141 and 142 of the Negotiable Instrument Act. So far petitioner no. 1, the company, itself, is concerned, the prosecution witnesses have admitted that more than total amount concerning the bounced cheques were paid by the company to the complainant and the same was duly accepted. Sec. 138 of the Negotiable Instrument Act is a compoundable offence in case the monetary loss which has been suffered by the complainant on account of dishonour of cheque is duly compensated by the accused the liability is discharged and there remains nothing for which an accused can be prosecuted. There is admission of prosecution witnesses in their pre-charge evidence regarding payment of money more than the amount for which the cheques were issued. In the given circumstance, the dispute relating to dishonouring of cheque has already been settled, there remains nothing for continuation of criminal proceeding against accused petitioner no. There is admission of prosecution witnesses in their pre-charge evidence regarding payment of money more than the amount for which the cheques were issued. In the given circumstance, the dispute relating to dishonouring of cheque has already been settled, there remains nothing for continuation of criminal proceeding against accused petitioner no. 1, the company. Counsel for the petitioners has placed reliance on decision reported in III (2003) B.C., 59 (Mukesh Gupta Vs. Kabsons Gas Equipment Ltd. & Anr) and III (2003) B.C., 136 (A.C. Gupta Vs. Renu Gautam). 10. The counsel appearing for opposite party no. 2, the Bihar State Financial Corporation, has filed counter affidavit where it has been stated that besides the three cheques, reference of which has been given in the complaint, there were six other more cheques which were also produced for encashment and dishonoured on account of payment of Rs. 4,26,000/-, as such, it can not be said that the liability of payment of loan has been discharged and Sec. 138 of the Negotiable Instrument Act is not applicable. The statement made in the counter affidavit is beyond the allegation made in the complaint petition. In the complaint petition, allegation only of three cheques have been made. Allegation is centered only with regard to dishonour of three cheques, as such, the subsequent event which has been taken place can not be taken into consideration. In the counter affidavit there is admission of payment of Rs. 4.26/- lacs and acceptance of same by the complainant. 11. In this view of the matter, petitioners prayer for discharge is allowed. The order, dated 16.4.2005, passed by the Additional Sessions Judge, V, Patna, in Criminal Revision No. 499 of 2003 affirming the order, dated 18.6.2003, passed in Complaint Case No. 89(C) of 1995 is quashed. 12. Accordingly, this application is allowed.