S. R. BRAHMBHATT, J. ( 1 ) RULE. Mr. Patel, learned Addl. P. P. waives service of Rule on behalf of respondent No. 1 and Mr. Pandya, learned Counsel waives service of Rule on behalf of respondent No. 2. With the consent of the learned Counsel for the respective parties, Rule is fixed forthwith. ( 2 ) THE applicant in all these seven Criminal Miscellaneous Applications, who is an accused No. 5 in seven Criminal Cases filed by the Respondent No. 2 original complainant, for commission of offence punishable under Section 138 read with Section 141 of the Negotiable Instruments Act 1881 (herein after referred to as N. I. Act for short) has filed these applications under Section 482 of the Criminal Procedure Code 1974 (herein after referred to as the Code for short) for quashing the Criminal proceedings in those seven Criminal cases pending in the court of JMFC Gandevi. As all the seven Criminal Miscellaneous Applications arise between the same parties and involve almost identical facts and raise common points for determination they are heard together and disposed of by this common judgment. ( 3 ) BRIEF facts leading to filing of these applications deserve to be set out as under. The Complainant a registered Limited Company under the Company Act 1956 through its one of the Directors filed the following Criminal Cases against the accused No. 1 Company and its Directors for commission of offence punishable under Section 138 read with Section 141 of the N. I. Act, as the several cheques, issued by and on behalf of the accused No. 1 Company against the supply of goods, were dishonored by the Bank of the Accused No. 1 on account of insufficient funds and as the Accused No. 1 and its directors failed in making the payment to the Complainant within stipulated time after receiving the statutory notices under the provisions of the N. I. Act. The details of Criminal cases filed in the Court of JMFC Gandevi are set out hereunder. Criminal MC. A . No. JMFC Gandevi Criminal Case in Dates of Cheques 3255 of 2006 3257 of 2004 05. 07. 2004 3256 of 2006 3258 of 2004 07. 06. 2004 3257 of 2006 3259 of 2004 07. 06. 2004 3258 of 2006 3287 of 2004 10. 05. 2004 3259 of 2006 3288 of 2004 12. 04. 2004 3260 of 2006 3289 of 2004 10. 07. 2004 3256 of 2006 3258 of 2004 07. 06. 2004 3257 of 2006 3259 of 2004 07. 06. 2004 3258 of 2006 3287 of 2004 10. 05. 2004 3259 of 2006 3288 of 2004 12. 04. 2004 3260 of 2006 3289 of 2004 10. 05. 2004 & 07. 06. 2004 3261 of 2006 3290 of 2004 12. 04. 2004 ( 4 ) THE Learned Advocate for the petitioner has submitted that the accused No. 5 present petitioner in all the said Criminal Cases had ceased to be the Director of the Accused No. 1 Company with effect from 1. 02. 2002. The Cheques in questions were admittedly issued between April to July 2004 and hence he could not have been responsible to or in charge of the Accused No. 1 Company so as to be implicated for commission of offence under Sections 138 and 141 of the N. I. Act. The Counsel for the petitioner has also contended that the petitioner has sent reply to the statutory notice issued by the Complainant under the provisions of N. I. Act that when the subject cheques were issued by the Accused No. 1 Company he had ceased to be the Director of the Company and he was in no way responsible for the day to day affairs of the accused No. 1 Company. The Complainant has mentioned in the complaint that it did receive the reply from the petitioner but has not deliberately disclosed as to what was the reply of the petitioner. The complainant has referred to it in its complaint that present petitioner sent some vague reply. The factum of resignation of the petitioner with effect from 1. 02. 2002 is sought to be established by producing relevant extract of the record maintained by the Registrar of Companies under the Companies Act 1956. As the petitioner was not in any way connected with the Company, he was not liable to be implicated as accused in the criminal proceedings and hence the same deserve to be quashed and set aside qua him. ( 5 ) SHRI Pandya Learned Advocate for the respondent No. 2 Complainant Company has submitted that these applications deserve to be dismissed as the essential ingredients required for maintaining the Complaint under Section 138 read with Section 141 of the N. I. Act have been amply averred in the memos of the impugned Complaints. ( 5 ) SHRI Pandya Learned Advocate for the respondent No. 2 Complainant Company has submitted that these applications deserve to be dismissed as the essential ingredients required for maintaining the Complaint under Section 138 read with Section 141 of the N. I. Act have been amply averred in the memos of the impugned Complaints. The submission of the applicant that he was not the Director at the relevant time being a question of facts cannot be gone into in these proceedings for quashing the Complaints under Section 482 of the Code. Shri Pandya, learned Counsel for Respondent No. 2 has submitted that the documents produced with the application need not be looked into for quashing the criminal proceedings. Shri Pandya has relied upon the decision of the apex Court in case of S. V. Muzumdar and Ors. v. Gujarat State Fertilizer Co. Ltd. and Anr. and submitted that the question as to whether the applicant was responsible with the day to day affairs of the accused No. 1 Company so as to hold him liable for commission of offence under Section 138 read with Section 141 of the N. I. Act cannot be decided in application for dropping proceedings as it is a question to be decided on evidence during the trial. The Counsel for the Respondent No. 2 has further submitted that the applicant has issued the press release notifying to public at large that he has resigned from the Accused No. 1 Company with effect from 1. 02. 2002, only in the year 2005 shows that prior thereto he was in fact posing himself as Director of the company and use to induce customers and suppliers of the Accused No. 1 Company to deal with it. Now he cannot be permitted to shirk the criminal liability arising from such posing. ( 6 ) THIS Court has heard learned Counsels of the respective parties at length and perused the documents on the record of theses applications. The following emerge from the same. 1. The Complaints have been filed against the Accused No. 1 and others only in respect of offence punishable under Section 138 read with Section 141 of the N. I. Act. 2. The impugned Complaints do not contain any averments with regard to defrauding or cheating of the Complainant Company by the accused No. 5 or by any other accused. 3. The Complaints have been filed against the Accused No. 1 and others only in respect of offence punishable under Section 138 read with Section 141 of the N. I. Act. 2. The impugned Complaints do not contain any averments with regard to defrauding or cheating of the Complainant Company by the accused No. 5 or by any other accused. 3. The Complainant has not filed the Complaints under Section 420 or 406 of the Indian Penal Code nor has he made any averments in the impugned complaints that due to any false representation from the Accused No. 5 he was induced to deliver goods to the accused company. 4. The Accused No. 5 is joined as such in his capacity as Director of the Accused No. 1 Company. No other overt role is attributed to him in the impugned complaints. 5. The Complaint did receive reply from the Accused No. 5 to the Notice issued by him as it is stated in the memo of the complaint that accused No. 5 gave vague reply to the notice. 6. The communication dated 1. 11. 2004 addressed by the Advocate of the present petitioner contains specific reference to the resignation of the petitioner from the Accused No. 1 Company with effect from 1. 2. 2002 itself. The impugned complaints have been filed thereafter. The Complainant has not disclosed these facts in the complaints or in the sworn statement made before the Learned Magistrate. ( 7 ) THESE applications contain categorical averments with document in the form of extract of Record of the Registrar of Companies that the present petitioner original accused No. 5 had resigned as Director of the Accused No. 1 Company with effect from 1. 02. 2002. These facts and assertions have remained uncontroverted. ( 7 ) THESE applications contain categorical averments with document in the form of extract of Record of the Registrar of Companies that the present petitioner original accused No. 5 had resigned as Director of the Accused No. 1 Company with effect from 1. 02. 2002. These facts and assertions have remained uncontroverted. ( 8 ) IT is also significant to note that in the impugned complaints the original complainants has stated on page three as under S (Note: Notice, summons, process of accused No. 1 may be served on accused No. 2 and Notice, summons, process of accused No. 2,3 may be served on their office address and 4and5 may be served on their residential addresses.) This specific note in the Memos of the impugned complaints coupled with the fact that the accused No. 5 had in fact replied to the notice of the complainant that he ceased to be the Director of the accused No. 1 Company with effect from 1. 02. 2002 leads to one and only possible conclusion that the present applicant has been deliberately and falsely implicated as accused No. 5 in the impugned criminal proceedings. ( 9 ) IT is no where averred in the impugned complaints that the accused No. 5 was either signatory of the Cheuqes in question or that he was in charge of, and responsible to the Accused No. 1 Company for its day to day affairs. The averments made in the impugned Complaints in respect of the accused No. 5 deserve to be reproduced as under, in the Cause title of the impugned complaints no one is referred to as the Director of the Accused No. 1 Company. In the first paragraph it is stated, S Accused No. 2 to 7 are in charge and responsible persons for the conduct of the business of the accused No. 1 company. In paragraph 4 its mentioned as under SThe said demand notices were served on all accused on 25. 10. 2004 but accused No. 4 and 5 gave false reply to the said notice and other accused did not replied to the notice. . . . Barring the aforesaid averments there are no averments made in he complaint against the accused No. 5. In light of the fact that accused No. 5 had resigned from the Accused No. 1 Company with effect from 1. 02. . . . Barring the aforesaid averments there are no averments made in he complaint against the accused No. 5. In light of the fact that accused No. 5 had resigned from the Accused No. 1 Company with effect from 1. 02. 2002 and all the cheques appear to have been issued on behalf of the accused No. 1 Company signed by accused No. 3 and 6 the aforesaid averments cannot be said to be sufficient enough to implicate the accused No. 5 for commission of offence under Section 138 read with Section 141 of the N. I. Act. ( 10 ) THE decision cited by Shri Pandya, learned Counsel of the Respondent No. 2 in case of K. C. Seth v. State of Gujarat reported in 2003 (4) Gujarat Law Reporter at page 2799 has no applicability to the facts and circumstances of the present cases. In the above said case it was an admitted fact that the petitioner-accused was implicated not only in his capacity as erstwhile Chairman/director of the Accused Company but also for the fact that he was signatory of the cheque in question. As the petitioner _accused in the aforesaid case was also a signatory of the cheque for and on behalf of the Company, the Court did not quashed the proceedings. Whereas in the instant case as it is stated herein above it is clearly stated that accused no 3 and 6 were the signatory of the cheques. In any case its not stated anywhere that the present applicant original accused No. 5 was signatory of the cheque. ( 11 ) AGAINST the aforesaid back drop, the plea of applicant for quashing the criminal proceedings deserve to be examined. ( 12 ) THE decision of the Apex Court in case of S. V. Muzumdar (supra) cited by Shri Pandya learned Counsel for the original complainant is of no avail to respondent No. 2. In that case the Apex Court has held that the question as to whether a person was in-charge of or responsible to the Company cannot be decided while considering his application for dropping the proceedings. In that case the Apex Court has held that the question as to whether a person was in-charge of or responsible to the Company cannot be decided while considering his application for dropping the proceedings. In other words even an existing Director of the Company can also establish on leading evidence during the course of the trial that though he was Director of the Company but was not responsible for commission of an offence under Section 138 read with Section 141 of the N. I. Act But such Director s plea of not being responsible for commission of offence under Section 138 read with Section 141 cannot be made basis for dropping the proceedings at the very threshold as it essentially depends upon the evidence that may be adduced during the trial. The aforesaid judgment cannot be construed to mean that the erstwhile Director of the Company having resigned from the accused company well before issuance of cheque in question and not having any connection with the Company cannot successfully maintain petition for quashing the proceedings against him under Section 138 read with Section 141 of the N. I. Act only on the plea that he is alleged to have been in charge of or responsible to the accused company for its day to day affairs. The Company registered under the Companies Act 1956 cannot be said to run or to be in charge of the persons who are not so declared before the Registrar of the Companies. Thus Section 141 of the N. I. Act needs to be construed with utmost care as it brings about vicarious criminal liability. ( 13 ) IN facts and circumstances of the present cases the decision of the Apex Court in case of S. M. S. Pharmaceuticals Ltd. v. Neeta Bhalla and Anr. is applicable. The Apex Court s observation made in the aforesaid case deserves to be set out as under. Para 9 : The position of a managing director or a joint managing direction in a company may be different. These persons, as the designation of their office suggests, are in charge of a company and are responsible for the conduct of the business of the company. Para 9 : The position of a managing director or a joint managing direction in a company may be different. These persons, as the designation of their office suggests, are in charge of a company and are responsible for the conduct of the business of the company. In order to escape liability such persons may have to bring their case within the proviso to Section 141 (1), that is, they will have to prove that when the offence was committed they have no knowledge of the offence or that they exercised all due diligence to prevent the commission of the offence. Para 10: While analyzing Section 141 of the Act, it will be seen that it operates in cases where an offence under Section 138 is committed by a company. The words and take every person connected with a company within their sweep. Therefore, these words have been rightly qualified by use of the words:who, at the time of 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, etc. What is required is that the persons who are sought to be made criminally liable under Section 141 should be, at the time of offence was committed, in charge of and responsible to the company for the conduct of the business of the Company. Every person connected with the company shall not fall within the ambit of the provisions. It is only those persons who were in charge of and responsible for the conduct of business of the company at the time of commission of an ofence, who will be liable for criminal action. It follows from this that if a director of a company who was not in charge of and was nor responsible for the conduct of the business of the company at the relevant time, will not be liable under the provision. The liability arises from being in charge of and responsible for the conduct of business of the company at the relevant time when the offence was committed and not on the basis of merely holding a designation or office in a company. The liability arises from being in charge of and responsible for the conduct of business of the company at the relevant time when the offence was committed and not on the basis of merely holding a designation or office in a company. Conversely, a person not holding any offence or designation in a company may be liable if he satisfies the main requirement of being in charge of and responsible for the conduct of business of a company at the relevant time. Liability depends on the role one plays in the affairs of a company and not on designation or status. If being a direction or manager or secretary was enough to cast criminal liability, the section would have said so. Instead of every person the section would have said every direction, manager or secretary in a company is liable. . . etc. The legislature is aware that it is a case of criminal liability which means erious consequences so far as the person sought to be connected with the commission of a crime at the relevant time have been subjected to action. ( 14 ) THUS as it is stated herein above the averments made in the impugned complaints and uncontroverted knowledge of fact that accused No. 5 was no more Director in the accused No. 1 Company nor was he signatory of the cheques in question go to show that the criminal proceedings against him are not tenable and continuation thereof would rather result into miscarriage of justice. ( 15 ) THIS Court therefore is of the considered opinion that the impugned complaints do not disclose any case against the present applicant original accused No. 5 for commission of an offence under Section 138 read with Section 141 of the N. I. Act. Hence the impugned complaints and resultant Criminal Cases against the present applicant and original accused No. 5 deserve to be quashed in respect of the present applicant only and accordingly they are hereby quashed. ( 16 ) AS these applications are filed only by the accused No. 5 the observations of this Court are only in respect of the said accused, and therefore Trial Court is at liberty to proceed further with the cases in respect of other accused in accordance with law. ( 16 ) AS these applications are filed only by the accused No. 5 the observations of this Court are only in respect of the said accused, and therefore Trial Court is at liberty to proceed further with the cases in respect of other accused in accordance with law. As all the seven applications filed by the accused No. 5 are disposed off by this common judgment, the Registry is directed to keep copy of this Judgment in each of the seven applications. Rule is made absolute.