ORDER S.C. Vyas, J. This is a petition filed u/s 482 of Criminal Procedure Code, for quashment of order dated 24-3-2003, passed by Special Magistrate, Indore in Criminal Case No. 1043/03 against petitioner for taking cognizance of the offence punishable u/s 138 of Negotiable Instruments Act (hereinafter referred to as the Act for brevity). The short facts of the case are that respondent No. 2 Chetan Mohanwani filed a Criminal Complaint No. 1043/2003 in the Court of Special Magistrate, Indore for trial of the offence punishable u/s 138 of the Act, against five persons including the present petitioner. In Paragraph No. 3 of the complaint, it has been stated that accused No, 2 Arvind Kumar Singh is the Managing Director of the accused No. 1 Company, accused No. 3 i.e. present petitioner and accused No. 4 are its Directors and accused No. 5 is its signing authority. Complainant respondent No. 2 was appointed as Commercial Manager in that company and was requested to provide a loan of Rs. 6,10,000/- (Rs. Six Lacs Ten Thousand) to the company. Rs. 11,00,000/- (Rs. Eleven Lacs) were also obtained from him and Rs. 2,00,000/- (Rs. Two Lacs) were promised to be paid to him as per the agreement. So in all, Rs. 19,10,000/- (Rs. Nineteen Lacs Ten Thousand) were due to be paid to him. On 20-2-2003 accused Nos. 2 and 4 handed over a cheque to the complainant of Rs, 19,10,000/-, which was signed by accused Nos. 4 and 5 in the capacity of Director and Signing Authority of company. When the same was presented in the bank, then the cheque was dishonoured and thereafter a notice was given under the provisions of section 138 of the Act, which was replied by the accused persons, including the present petitioner but the cheque amount was not paid within prescribed period, therefore, the complaint was filed. It has been averred in this petition that present petitioner has been implicated in this case as an accused simply because she was holding the post of Director of the accused company. No other allegation or averment against the present petitioner has been made either in the complaint or in the statement of complainant recorded u/s 200 of Criminal Procedure Code. No other allegation or averment against the present petitioner has been made either in the complaint or in the statement of complainant recorded u/s 200 of Criminal Procedure Code. Present petitioner is not the person who issued the cheque and was not in-charge of and responsible for the conduct of the business of the company at the time of commission of the alleged offence. Therefore, the order of taking cognizance of the offence against present petitioner is abuse of process of law and is not sustainable. Learned counsel for the petitioner has drawn attention of this Court towards the provisions of section 141 of the Act and submitted that for the purpose of making liable any other person, than the company for the offence punishable u/s 138 of the Act, it is necessary to avert that such person was in-charge of and was responsible for the conduct of the business of the company, at the time of the alleged offence. Without making any specific averments in this regard, the requirement of section 141 cannot be said to be satisfied and merely being Director of company is not sufficient to fasten criminal liability upon the persons u/s 141 of the Act, because every Director cannot be deemed to be in-charge of and responsible for the conduct of the business of the company. In this regard heavy reliance has been placed by learned counsel for the petitioner on a reported judgment of the Supreme Court delivered in the case of S.M.S. Pharmaceuticals Ltd. Vs. Neeta Bhalla and Another, . To counter this argument, learned counsel for the respondent No. 2 submitted that present petitioner was not simply a Director of the company, but is also the wife of the Managing Director of the company accused No. 2 Arvind Kumar Singh and in that capacity she was taking active part in day to day conduct of the business of the company. It has also been submitted that in Paragraph No. 8 of the complaint some additional facts have also been averred and it has been stated that when the complainant made a telephonic call at the resident of respondent No. 2, Managing Director Arvind Kumar Singh, then he was not found available at his resident, but the call was responded by the present petitioner and when the cheque amount was demanded from her, then she said that as and when Mr. Arvind Kumar Singh (accused No. 2) will come to Indore, then he would talk on this subject to him. It has also been informed by her that, at that time company was not in a position to pay the amount and the same would be paid immediately after making necessary arrangements. Learned counsel further submitted that this averment is sufficient to show that present petitioner was taking full part in day to day conduct of the business of the company and was also in-charge of it. Learned counsel for the respondent placed reliance on the judgment of Supreme Court reported in the case of S.V. Muzumdar and Others Vs. Gujarat State Fertilizer Co. Ltd. and Another, . Whereas learned counsel for the petitioner further submitted that because later on a three Judges Bench of Supreme Court in the case of S.M.S. Pharmaceuticals Ltd. (supra) answered the questions which were referred by a two Judges Bench in this regard, therefore, in view of judgment of Supreme Court in the case of S.M.S. Pharmaceuticals Ltd. (supra) the decision referred by learned counsel for the respondent is of no avail to the respondent/ complainant. I have considered the arguments advanced by both the parties and have gone through the averments made in the complaint. In Paragraph No. 3 which is relevant paragraph for this purpose, except stating that present petitioner is also Director of the company, nothing else has been averred to show that in what way she is in-charge of and is responsible to the conduct of the business of the company and in what way she took part in conduct of the business of the company. It is clear that except saying that present petitioner is a Director nothing more has been averred in this paragraph. Apart from this, in Paragraph No. 8, as argued by learned counsel for respondent No. 2, the matter relating to a telephonic call has been described, but it is clear from that paragraph itself that present petitioner being wife of the Managing Director responded the telephone call. The description which has been given in this paragraph also nowhere shows that she is responsible to the conduct of the business of the company or is in-charge of the company. The description which has been given in this paragraph also nowhere shows that she is responsible to the conduct of the business of the company or is in-charge of the company. In absence of husband if wife respond a telephonic call and assures that the matter will be negotiated on later date, then this conversation cannot be said to be sufficient to show that she was in fact in-charge of or responsible to the conduct of the business of the company. Apart from this, the complainant who was examined u/s 200 of Criminal Procedure Code has stated nothing in this regard in that statement and a four line statement was given, stating therein that, the cheque was handed over to him by the accused and was not honoured by the bank and amount was not paid. Name of present petitioner has nowhere been even mentioned in that statement. In these circumstances the law laid down by the Supreme Court in the case of S.M.S. Pharmaceuticals Ltd. (supra) is fully applicable in the facts of the present case. It has been held in Paragraph No. 12 of the Judgment that: Para 12 -- While analysing section 141 of the Act, it will be seen that it operates in cases where an offence u/s 138 is committed by a company. The key words which occur in the section are "every person". These are general 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 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 etc." What is required is that the persons who are sought to be made criminally liable u/s 141 should be at the time the 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 provision. It is only those persons who were in-charge of and responsible for conduct of business of the company at the time of commission of an offence, who will be liable for criminal action. Every person connected with the company shall not fall within the ambit of the provision. It is only those persons who were in-charge of and responsible for conduct of business of the company at the time of commission of an offence, 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 not 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 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 office or designation in a Company may be liable if he satisfies the main requirement of being in-charge of and responsible for conduct of business of a Company at the relevant time. Liability depends on the role one plays in the affair of a Company and not on designation or status. If being a Director 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 Director, Manager or Secretary in a Company is liable'..............etc. The legislature is aware that it is a case of criminal liability which means serious consequences so far as the person sought to be made liable is concerned. Therefore, only persons who can be said to be connected with the commission of a crime at the relevant time have been subjected to action. Ultimately, in Paragraph No. 20 of the judgment again while answering the referred questions three Judges Bench gave reply of the question as under : Para 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 u/s 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. 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 u/s 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 a director in such cases. (c) The answer to 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 u/s 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 respondent for the conduct of business of the company. Therefore, they get covered u/s 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 subsection (2) of section 141. Thus, it is clear that merely being Director of the company is not sufficient to make present petitioner liable for the offence punishable u/s 141 of the Act and a Director in the company cannot be deemed to be in-charge and is responsible to the conduct of the business of the company. Unless, some additional facts are averred to show that such persons is in-charge and is responsible to the conduct of the business of the company. No such averments have been made in the facts of the present case and, therefore, merely being Director present petitioner could not have been prosecuted. Therefore, trial Court committed a mistake in registering the case against her and issuing process. Therefore, the petition succeeds and is allowed. No such averments have been made in the facts of the present case and, therefore, merely being Director present petitioner could not have been prosecuted. Therefore, trial Court committed a mistake in registering the case against her and issuing process. Therefore, the petition succeeds and is allowed. The order of taking cognizance and issuance of process against present petitioner is hereby quashed. Final Result : Allowed