KAILASH GAMBHIR, J. This order shall dispose of three separate petitions filed by the petitioners assailing the summoning order passed by the court of Sh. Chander Shekhar, Metropolitan Magistrate in three separate complaint cases. Common ground for challenging the summoning order in all the three petitions is that in all the three complaint cases filed by respondent No.2, the petitioners are neither the drawer nor the signatories of the dishonoured cheques based on which the complaint under Section 138 r/w Section 141 and 142 N.I. Act was filed by respondent No.2. In Criminal Miscellaneous No. 2667/2007 the petitioner does not dispute that he was director of M/s M.K. International Ltd. on the relevant date of the commission of the offence and he had also written a letter dated 9.9.2005 on behalf of the said company whereby 36 cheques were sent to the respondent No.2 as security which ultimately got dishonoured due to the non-availability of sufficient balance amount in the concerned bank account of the drawer of these cheques. While in two other cases i.e. Crl. M. No. 1637/07 and Crl. M.No. 1597/2007 the petitioners have claimed that they were not the directors on the relevant date of the commission of the crime as by that time they had already resigned from the Directorship of the said company. In support of this plea the petitioners have also filed form 32 which shows that they had resigned from the directorship of the company on 25.10.2005. All other legal grounds are common in all the three petitions. Crl. M. No. 2667/2007 The facts of the case which are not in dispute are that the 36 cheques were issued for a total amount of Rs.56,44,18,075 by Sh. Ram Chander Sharma one of the Directors of M/s M.K. International Ltd from his own personal account and all these cheques were dishonoured vide bank memo of the drawer bank dated 2.1.2007. The legal notice of demand in fulfillment of the requirement of Section 138 N.I. Act was sent by respondent No.2 against the company as well as all the directors of the company including the petitioner and on the failure of the drawer of the cheques and other co-directors to pay the amount, the respondent No.2 had filed the said complaint under Section 138 r/w Sections 141 and 142 N.I. Act. Crl. Crl. M. No. 1637/2007 Similarly, 36 cheques for an amount of Rs.56,44,18,075/- were drawn and signed by Sh. Ram Chander Sharma, Director of M/s M.K. International and the complaint was filed by respondent No.2 impleading the company as well as its directors after the failure of the drawer of the cheques and other co-notices to pay the amount of dishonoured cheques despite service of legal notice. Crl. M. No. 1597/2007 The dishonoured cheques were drawn and signed by Mr. Avdesh Singh, one of the Directors of M/s M.K. International Limited for an amount of Rs.1,12,65,321/-and the complaint was filed by respondent No.2 impleading the said company as well as its directors on the failure of the drawer of the cheque and the co-notices to pay the amount of the dishonoured cheques despite notice of demand sent by the company. The common question of law raised by the petitioners is that no other person except a drawer of the cheque from whose account the dishonoured cheques were issued can be made liable to face criminal prosecution under Section 138 N.I. Act as envisaged under Section 141 of the Act. The other contention raised in these petitions that vicarious liability of the Director or any other officer of the company can be fastened only in a case where the drawer of the cheque is company itself and necessary averments are made in the complaint clearly disclosing that impleaded accused persons were Incharge and responsible for the affairs and conduct of the business at the relevant time of commission of offence. Mr. Vijay Aggarwal counsel appearing for the petitioner in Crl. M.No. 2667/2007 strongly contended that plain reading of Section 138 of the N.I. Act would show that the complaint under Section 138 can be maintainable only against a person who is a drawer of the cheque and who has drawn the cheque in an account maintained by him and such a person alone shall be deemed to have committed an offence and shall be punished with imprisonment or with fine as specified in the section. The contention of the counsel for the petitioner is that the complaint under Section 138 N.I. Act cannot be maintained against a person who is not a drawer of the cheque and on whose account the cheque has not been issued. The contention of the counsel for the petitioner is that the complaint under Section 138 N.I. Act cannot be maintained against a person who is not a drawer of the cheque and on whose account the cheque has not been issued. Drawing strength from the definition of the drawer as given in Section 7 of the N.I. Act the counsel submits that it is only the maker of bill of exchange or a cheque who can be considered as drawer and no other person. Section 7 of N.I. Actr is reproduced as under:- The maker of a bill of exchange or Cheque is called the ``drawer`; the person thereby directed to pay is called the ``Drawee`. ``Drawee in case of need ``: When the bill or in any endorsement thereon the name of any person is given in addition to the drawee to be resorted to in case of need such person is called a ``drawee in case of need`. ``Acceptor`: After the drawee of a bill has signed his assent upon the bill, or, if there are more parts thereof than one, upon one of such part, and delivered the same, or given notice of such signing to the holder or to some person on his behalf, he is called the ``acceptor`. ``Acceptor for honour`: 1[When a bill of exchange has been noted or protested for nonacceptance or for better security], and any person accepts it supra protest for honour of the drawer or of any one of the endorser, such person is called an ``acceptor for honour`. ``Payee`: The person named in the instrument, to whom or to whose order the money is by the instrument directed to be paid, is called the ``payee`. Counsel thus submits that admittedly in the present case the petitioner is neither the drawer nor the signatory of the cheque and also the cheque was not issued from his bank account, therefore, the complaint filed by respondent No.2 under Section 138 N.I. Act cannot be maintained against the petitioner. Counsel thus submits that admittedly in the present case the petitioner is neither the drawer nor the signatory of the cheque and also the cheque was not issued from his bank account, therefore, the complaint filed by respondent No.2 under Section 138 N.I. Act cannot be maintained against the petitioner. As far as the case of the complainant as set up in the complaint attributing the liability on the petitioner in his capacity as a Director is concerned the contention of the counsel for the petitioner is that there is no concept of vicarious liability in the entire criminal law and it is by virtue of Section 141 of the N.I. Act that legal fiction has been created whereby every person who at the time of the commission of the offence was an incharge and responsible to the company for the conduct of the business of the company as well as the company, the vicarious liability has been fastened on such person. The argument of the counsel for the petitioner is that for making any director or officer of the company liable for commission of an offence under Section 138 N.I. Act in a case where the offence is committed by a company, the drawer of the cheque necessarily has to be the company itself and it is only thereafter vicarious liability of any of the director or other principal officer subject to fulfillment of the requirement of Section 141 of the N.I. Act can be fastened and not otherwise. In view of this legal position counsel for the petitioner submitted that admittedly the drawer of the cheque in the facts of the present case is not the company but an individual himself who had signed the cheque in his individual capacity and from his own bank account. In support of his argument the ld. Counsel for the petitioner has placed reliance on a judgment of this court in 2001 (2) JCC (Delhi) 61 Smt. Kamana Gupta Vs. NCT of Delhi and Anr. especially para 8 and the judgment of the Apex Court reported as 2000 (1) JCC (SC) 1 Anil Hada Vs. Indian Acrylic Ltd. and special reference has been invited to the paras 11 and 12 of the same which are reproduced as under:- Normally an offence can be committed by human beings who are natural persons. especially para 8 and the judgment of the Apex Court reported as 2000 (1) JCC (SC) 1 Anil Hada Vs. Indian Acrylic Ltd. and special reference has been invited to the paras 11 and 12 of the same which are reproduced as under:- Normally an offence can be committed by human beings who are natural persons. Such offence can be tried according to the procedure established by law. But there are offences which could be attributed to juristic person also. If the drawer of a cheque happens to be a juristic person like a body corporate it can be prosecuted for the offence under Section 138 of the Act. Now there is no scope for doubt regarding that aspect in view of the clear language employed in Section 141 of the Act. In the expanded ambit of the word ``company` even firms or any other associations of persons are included and as a necessary adjunct thereof a partner of the firm is treated as director of that company. 12. Thus when the drawer of the cheque who falls within the ambit of Section 138 of the Act is a human being or a body corporate or even firm, prosecution proceedings can be initiated against such drawer. In this context the phrase ``as well as` used in Sub-section (1) of Section 141 of the Act has some importance. The said phrase would embroil the persons mentioned in the first category within the tentacles of the offence on a par with the offending company. Similarly the words ``shall also` in Subsection (2) are capable of bringing the third category persons additionally within the dragnet of the offence on an equal par. The effect of reading Section 141 is that when the company is the drawer of the cheque such company is the principal offender under Section 138 of the Act and the remaining persons are made offenders by virtue of the legal fiction created by the legislature as per the section. Hence the actual offence should have been committed by the company, and then alone the other two categories of persons can also become liable for the offence. Another argument advanced by the counsel for the petitioner is that machinery of criminal law cannot be set into motion against any person as a matter of course. Hence the actual offence should have been committed by the company, and then alone the other two categories of persons can also become liable for the offence. Another argument advanced by the counsel for the petitioner is that machinery of criminal law cannot be set into motion against any person as a matter of course. Refuting the said contentions, learned counsel for the respondent strongly contended that dishonoured cheques were issued in favour of M/s National Agricultural Cooperative Marketing Federation of India Ltd. in order to discharge debt owed by the company pursuant to the memorandum of understanding dated 30.11.2004 and the petitioners being the Managing Director/Directors of the said company at the relevant time of the commission of the offence cannot wriggle out or escape from their liability. Laying much emphasis on the letter dated 9.9.2005 addressed by M/s M.K. International Limited to the respondent complainant, counsel for the respondent contended that the said letter was written by none else but Mr. D.D. Giri, the petitioner in Criminal Miscellaneous No. 2667/2007. There is a reference to various meetings having taken place between two parties and as a consequence of which these cheques were issued. Last para of the said letter, as per the counsel for the respondent, clearly discloses that the company had taken the responsibility to make all the arrangements for payment of the amount of the said dishonoured cheques. For better appreciation of the facts the said letter is reproduced as under:- 9th of September 2005 The Additional Managing Director ( F and A), National Agricultural Cooperative Marketing, Federation of India Limited, 1, Siddhartha Enclave, New Delhi. Sir, Sub: Payments with post dated cheques as security. With reference to the above cited subject pertaining to Raw Sugar Imports pursuant to the various High Seas Sale Agreements between us and you (NAFED), and also in continuation with our earlier letter dated 12th August 2005 and various subsequent meetings with you and your officers, we are, thereby, as a consequence acting on your advice, we are enclosing 36 cheques. These 36 cheques are being arranged as security in order to make you feel secure of your payment. Here, it is outmost importance and pertinent to mention that these cheques are given as security and are to be definitely returned back by you to us on receiving the particular payment as per the schedule. These 36 cheques are being arranged as security in order to make you feel secure of your payment. Here, it is outmost importance and pertinent to mention that these cheques are given as security and are to be definitely returned back by you to us on receiving the particular payment as per the schedule. Further, please note that before invoking the enclosed security a minimum of 15 (Fifteen) Days notice is to be serve, in order to enable us to make arrangement of the amount in the account. Kindly acknowledge and oblige Thanking you Your faithfully, For M.K. International Limited AUTHORIZED SIGNATORY’ Counsel for the respondent further submitted that necessary averments so as to hold all the three petitioners in their respective cases liable for the offence have been made in the complaints. The counsel invited attention of this court to paras 4 and 8 of the said complaint which are reproduced as under:- 4. ‘That the accused company represented by Shri Manish Kant Aggarwal, accused No.2 the Managing Director, of accused No.1 Company approached the complainant to avail the credit/financial facility for export of Rice/Wheat/Soya Beans/Soya Meal/Yellow Maize etc. and also for LC facilities vide letter of the accused company dated 4.12.2003. Xxx xxx xxx Xxx xxx xxx 8. That the complainant after receipt of the aforesaid 36 cheques from the Accused No.1 Company had approached the accused No.2 of the Accused No.1 company who had been promising that the amount in lieu of the aforesaid post dated cheques which were due on 30th December, 2006 and the complainant had even had written a letter dated 27.1.2006 before presenting the cheque but in this regard there was no response from the accused No.1 company and as such the complainant presented the said 36 cheques issued in favour of the complainant drawn on Vijaya Bank, Defence Colony, New Delhi, duly signed by the authorized signatory accused No.3 one of the directors of the accused No.1 company on 29.12.2006 for realization/encashment for realization with their bankers Vijaya Bank, Hauz Khas, New Delhi, and the said cheques provided by the accused company were issued by the accused No.2 Sh. Ram Chander Sharma, the Director of the accused No.1 from his account and was towards the dues of the complainant society. Ram Chander Sharma, the Director of the accused No.1 from his account and was towards the dues of the complainant society. However, the complainant was shocked to know that the aforesaid cheques were dishonoured vide Bank memo of the accused bank Vijay Bank dated 2.1.2007. ‘ Counsel for the respondent further submitted that an advance letter dated 27.1.2006 was sent by the respondent to the said company and not to the director who had signed the cheques thereby making a request either to replace the cheques with the cheques of the current date or to ensure clearance of the said cheques. Counsel for the respondent also submitted that all the petitioners of the respective complaint cases are liable to be proceeded against and all these petitioners are trying to create a fa’ade so as to wriggle out from their liability. Counsel for the respondent further submitted that all these petitioners are accused and they should not be allowed to scuttle the legal process under false and flimsy pleas of their not being drawer or signatory of the dishonoured cheques. Counsel for the respondent also submitted that even otherwise all these questions can only be gone into during trial and the provision of Section 482 Cr.P.C. which can be resorted to in rare and exceptional circumstances should not come to the rescue of such petitioners. I have heard learned counsel for the parties at considerable length and carefully gone through the documents filed on record. In view of the judgment of the Supreme Court in Adalat Prasad v. Jindal 113 (2004) DLT 356 (SC): III (2004) CCR 176 (SC): 2004 VIII AD (SC) 533, after summoning orders are passed by the Trial Court, it has no power to recall the same and in that case, the remedy available to the aggrieved party is to approach the High Court alone by filing petition under Section 482 of the Code of Criminal Procedure. Because of this position in law, the responsibility of the Magistrates to carefully examine the complaint and the pre-summoning evidence before issuing the summons becomes paramount. Because of this position in law, the responsibility of the Magistrates to carefully examine the complaint and the pre-summoning evidence before issuing the summons becomes paramount. Invariably, it has been noticed that not only the summons are directed against all those who are impleaded as directors where the prime accused is the company even when there are no averments against such directors or sometimes even without taking care as to whether ingredients under Sections 138 and 142 of the NI Act are prima facie satisfied or not. For better appreciation of the controversy it would be appropriate to reproduce Section 138 and 141 of N.I.Act at this juncture, which is as under: ‘138. Dishonour of cheque for insufficiency, etc., of funds in the accounts Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall without prejudice to any other provisions of this Act, be punished with imprisonment for ``a term which may extend to two year`, or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless- (a) The cheque has been presented to the bank within a period of six 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 induce 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 cheques 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` means a 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 proceeded against and punished accordingly]; Provided that nothing contained in this sub-section shall render any person liable to punishment if he proves that the offence was committed without his knowledge, or that he had exercised all due diligence to prevent the commission of such offence. Provided further that where a person is nominated as a Director of a company by virtue of his holding any office or employment in the Central Government or State Government or a financial corporation owned or controlled by the Central Government or the State Government, as the case may be, he shall not be liable for prosecution under this Chapter. (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 consent or connivance of, or is attribute to, any neglect on the part of, any director, Manager, secretary, or other office 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 punished accordingly. Explanation: For the purpose of this section. Explanation: For the purpose of this section. - (a) ``Company` means any body corporate and includes a firm or other association of individuals; and (b) ``Director`, in relating to a firm, means a partner in the firm.’ Section 138 casts criminal liability punishable with imprisonment of sentence or fine and with both on a person who issues a cheque towards discharge of a debt or liability as a whole or in part and the cheque is dishonored by the bank on presentation. Thus, under the provisions of Section 138, any person who issues a cheque for the discharge of liability and the said cheque is dishonored, becomes criminally liable, in the event of payment of dishonoured cheque not made after notice of demand is given to him to make the payment within 15 days of the receipt of the said notice. If the person committing an offence under Section 138 is a company, then vicarious liability is fastened on certain other persons as well. A plain reading of Section 138 N.I. Act clearly shows that a complaint petition is maintainable at the instance of the person in whose favour the cheque was drawn and to bring home the offence under S. 138 N.I. Act the complaint can be maintained when:- (i) The cheque was drawn by ‘a person’ and (ii) The cheque was drawn on account maintained by ‘him’ with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, or any debt or other liability, is returned by the bank unpaid either because of insufficient amount in the account or due to the amount to be paid exceeds the amount in the account; and (iii) In that event such a person shall be deemed to have committed an offence. A plain reading of Section 138 of the Act makes it manifest that if a cheque is drawn by a person on an account maintained by him and issued for the discharge of an existing debt and the cheque bounces either on account of insufficiency of the funds or on account of a fact that it exceeds the amount arranged to be paid from that account, that person is deemed to have committed an offence. The section leaves no doubt and makes it manifest that the person who has drawn the cheque on his account alone is liable in the event of that cheque drawn by him having bounced. However, Section 141 of the N.I.Act envisage a situation where the drawer of the cheque is a juristic person like a company or other association of individuals. The language of Section 141 of N.I.Act also makes it explicitly clear that if a person who has drawn the cheque is a company then not only the company alone but also every person who at the time the offence was committed was in charge and was responsible for the conduct of the business of the company is liable for the commission of an offence under Section 138 of N.I.Act. Section 141 of N.I. Act thus postulates three categories of persons who can be held liable and responsible for the penal consequences which are:- (i) the company in itself who committed the offence; (ii) every person who was in charge and was responsible for the conduct of the business of the company at the relevant time; (iii) any other person who is a Director or Manager or Secretary or an officer of the company with whose connivance or due to whose negligence the company had committed the offence. The mandate of the section clearly indicates that the company is liable for prosecution when a cheque is issued on its behalf and bounced on presentation of such cheque. The intendment of the section is not to give scope to individuals to escape by issuing cheques in the name of the firm. Therefore, when cheques are issued in the name of the company, the company is invariably liable for prosecution for the offence under Section 138 of the Act. Thus, when the drawer of the cheque who falls within the ambit of Section 138 of the Act is an individual person or a body corporate or even firm, prosecution proceedings can be initiated against such drawer. It is settled law that drawer of the cheque can be prosecuted under Section 138 of the Negotiable Instruments Act on the cheque getting dishonoured. The Apex Court in SMS Pharmaceuticals Ltd. Vs. It is settled law that drawer of the cheque can be prosecuted under Section 138 of the Negotiable Instruments Act on the cheque getting dishonoured. The Apex Court in SMS Pharmaceuticals Ltd. Vs. Neeta Bhalla and Anr., (2007) 4 SCC 70 , has clearly held that in order to implicate any person it has to be averred in the complaint that such a person was in charge or responsible for the affairs of the company, in a case where the main offender is the company. It would be relevant to reproduce the following paras from the said judgment: ‘16. In State of Haryana v. Brij Lal Mittal it was held that vicarious liability of a person for being prosecuted for an offence committed under the Act by a company arises if at the material time he was in charge of and was also responsible to the company for the conduct of its business. Simply because a person is a director of a company, it does not necessarily mean that he fulfils both the above requirements so as to make him liable. Conversely, without being a director a person can be in charge of and responsible to the company for the conduct of its business. 17. K.P.G. Nair v. Jindal Menthol India Ltd. was a case under the Negotiable Instruments Act. It was found that the allegations in the complaint did not in express words or with reference to the allegations contained therein make out a case that at the time of commission of the offence, the appellant was in charge of and was responsible to the company for the conduct of its business. It was held that the requirement of Section 141 was not met and the complaint against the accused was quashed. Similar was the position in Katta Sujatha v. Fertilizers and Chemicals Travancore Ltd. This was a case of a partnership.’ It was found that no allegations were contained in the complaint regarding the fact that the accused was a partner in charge of and was responsible to the firm for the conduct of business of the firm nor was there any allegation that the offence was made with the consent and connivance or that it was attributable to any neglect on the part of the accused. It was held that no case was made out against the accused who was a partner and the complaint was quashed. It was held that no case was made out against the accused who was a partner and the complaint was quashed. The latest in the line is the judgment of this Court in Monaben Ketanbhai Shah v. State of Gujarat12. It was observed as under: ‘4. It is not necessary to reproduce the language of Section 141 verbatim in the complaint since the complaint is required to be read as a whole. If the substance of the allegations made in the complaint fulfil the requirements of Section 141, the complaint has to proceed and is required to be tried with. It is also true that in construing a complaint a hypertechnical approach should not be adopted so as to quash the same. The laudable object of preventing bouncing of cheques and sustaining the credibility of commercial transactions resulting in enactment of Sections 138 and 141 has to be borne in mind. These provisions create a statutory presumption of dishonesty, exposing a person to criminal liability if payment is not made within the statutory period even after issue of notice. It is also true that the power of quashing is required to be exercised very sparingly and where, read as a whole, factual foundation for the offence has been laid in the complaint, it should not be quashed. All the same, it is also to be remembered that it is the duty of the court to discharge the accused if taking everything stated in the complaint as correct and construing the allegations made therein liberally in favour of the complainant, the ingredients of the offence are altogether lacking. The present case falls in this category as would be evident from the facts noticed hereinafter.’ It was further observed: (SCC pp.’ 18-19, para 6) ‘6. ... The criminal liability has been fastened on those who, at the time of the commission of the offence, were in charge of and were responsible to the firm for the conduct of the business of the firm. These may be sleeping partners who are not required to take any part in the business of the firm; they may be ladies and others who may not know anything about the business of the firm. The primary responsibility is on the complainant to make necessary averments in the complaint so as to make the accused vicariously liable. These may be sleeping partners who are not required to take any part in the business of the firm; they may be ladies and others who may not know anything about the business of the firm. The primary responsibility is on the complainant to make necessary averments in the complaint so as to make the accused vicariously liable. For fastening the criminal liability, there is no presumption that every partner knows about the transaction. The obligation of the appellants to prove that at the time the offence was committed they were not in charge of and were not responsible to the firm for the conduct of the business of the firm, would arise only when first the complainant makes necessary averments in the complaint and establishes that fact. The present case is of total absence of requisite averments in the complaint.’ 18. To sum up, there is almost unanimous judicial opinion that necessary averments ought to be contained in a complaint before a person can be subjected to criminal process. A liability under Section 141 of the Act is sought to be fastened vicariously on a person connected with a company, the principal accused being the company itself. It is a departure from the rule in criminal law against vicarious liability. A clear case should be spelled out in the complaint against the person sought to be made liable. Section 141 of the Act contains the requirements for making a person liable under the said provision. That the respondent falls within the parameters of Section 141 has to be spelled out. A complaint has to be examined by the Magistrate in the first instance on the basis of averments contained therein. If the Magistrate is satisfied that there are averments which bring the case within Section 141, he would issue the process. We have seen that merely being described as a director in a company is not sufficient to satisfy the requirement of Section 141. Even a non-director can be liable under Section 141 of the Act. The averments in the complaint would also serve the purpose that the person sought to be made liable would know what is the case which is alleged against him. Even a non-director can be liable under Section 141 of the Act. The averments in the complaint would also serve the purpose that the person sought to be made liable would know what is the case which is alleged against him. This will enable him to meet the case at the trial.’ Indisputably, where the company is the principal offender then any of its Director would become liable due to the legal fiction created under Section 141 N.I. Act. For holding a person vicariously liable for an offence of which the principal accused is the company, it is essential that the incriminating act was done by him. When a person was neither signatory to the cheques nor there is any averment to the effect that he was incharge and responsible for the day-to- day affairs of the firm, then there is no reason for sustenance of the complainant against him. It is a trite law that criminal prosecution puts a person to a great harassment besides causing damage to ones esteem, therefore, the same cannot be resorted to unless the allegations made in the complaint disclose the commission of offence on the part of a person being impleaded in the case. Crl MC No. 2667/2007 In Crl MC No. 2667/2007, the petitioner was a director of M/s. M.K. International Ltd. at the time of commission of the offence and he also wrote a letter dated 9/9/2005 acknowledged the debt and sent 36 cheques to respondent no. 2 as security, which ultimately got dishonoured. In para 12 of the complaint it has been averred that accused No.2 to 7 at the time of commission of offence were incharge of and were responsible to the company for conduct of the business of the company. Para 12 of the complaint is reproduced as under:- ‘That the complainant submits that the accused No.2 to 7 at the time of commission of the offence were incharge of and were responsible to the company for conduct of the business of theand therefore, the accused No.2 to 7 as well as accused No.1 under Section 138 of the Negotiable Instrument Act.’ The counsel for the respondent has argued that the fact of the petitioner being a director of the accused company and the said averments in the complaint are sufficient to prosecute the petitioner. The proceedings under Section 138 of the N.I. Act are not proceedings of Civil Nature. This section is required to be construed strictly. Although, in the instant case the petitioner wrote a letter sending cheques to the respondent No.2 but mere handing over the cheques, that too where the drawer of the cheques has signed these cheques in his own individual capacity and where the bounced cheques do not even bear the seal of the company, may at the most have incurred civil liability but not the criminal liability. Criminal liability of the offence enshrined in S. 138 N.I. Act is squarely upon the person who has drawn the cheque on his own bank for discharging a debt and liability may be of some one else. Herein, the company M/s M.K. International Ltd. as discussed above, is not the drawer of the dishonoured cheques and therefore, the petitioner although, being a director cannot be made liable to face criminal prosecution for the dishonoured cheques drawn by one of the other directors from his own personal account. As would be evident from the bare reading of Section 141 of N.I. Act the Directors and other functionaries of the company can be made vicariously liable only when the principal offender is a company. I have no doubt whatsoever that the prosecution of a company is a sine qua non for prosecution of the various functionaries of the company being In-charge and responsible for the conduct of the affairs of the company at the relevant time of commission of the offence, and therefore, the first prerequisite to maintain a complaint against any Director or other functionaries of the company is to disclose sufficiently in the complaint as to how the company is liable and then only the director and other functionaries of the company can be made liable for the conduct of the business of the company. The combined reading of Section 138 and Section 141 of Negotiable Instrument Act would clearly show that a drawer for such complaints based on the dishonoured cheques necessarily has to be a company itself and thereafter the other question would arise as to which of the directors and other functionaries of the company were responsible for the conduct and affairs of the business of the company. The word ‘person’, mentioned in Section 138 of the Act, against whom complaint can be maintained only when such a person is a drawer of a company and the same has been issued from account maintained by him i.e. a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part , of any debt or other liability when returned by the bank unpaid. When the offence is not committed by any juristic person then the complaint under Section 138 is maintained against a person who is a drawer of a cheque who has issued a cheque from his own account maintained by him i.e. bank and from that very account if it is found that the amount standing to the credit of that account was insufficient to honour the cheque then such a person who is a drawer of the cheque shall be deemed to have committed an offence. This very liability can be fastened under Section 141 which deals with the offences committed by companies when the company itself is a drawer of such a cheque being the principal offender and against every person who at the time of the commission of the offence was In-charge of and responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be the guilty of the offence. The aforesaid provisions would thus clearly show that the prosecution against the directors and other functionaries of the company who at the time of the commission of the offence In-charge and responsible to the company for the conduct and affairs of the business of the company would arise only when the company itself is the drawer of such dishonoured cheques and then only vicarious liability of the company would shift on such directors and other functionaries of company, otherwise not. Therefore, the argument of the counsel for the respondent has no force. Thus, petitioner cannot be held liable for the offence under Section 138 N.I. Act. In view of the above discussion, the summoning order passed by the court of Ld. ASJ is quashed and the complaint qua him is dismissed. In view of the aforesaid, the petition is allowed. Therefore, the argument of the counsel for the respondent has no force. Thus, petitioner cannot be held liable for the offence under Section 138 N.I. Act. In view of the above discussion, the summoning order passed by the court of Ld. ASJ is quashed and the complaint qua him is dismissed. In view of the aforesaid, the petition is allowed. Crl MC No. 1597/2007 and Crl MC No. 1637/2007 In Crl MC No. 1597/2007, the petitioner had already resigned from the company on 25/10/2005 and the form 32 was accordingly submitted to Registrar of Companies before the issue of the 3 cheques on 30/6/2006. It is also not disputed that the said cheques were issued by one Sh. Avdesh Kumar Singh. It has also come on record that the cheques were issued by Sh. Avdesh Kumar Singh in his individual capacity. In Crl MC No. 1637/2007 as well, the petitioner had already resigned from the company on 25/10/2005 and the form 32 was accordingly submitted to Registrar of Companies before the issue of the 36 cheques on 9/9/2005. It is also not disputed that the said cheques were issued by one Sh. Ram Chander Sharma. There are bald allegations that he was responsible for the day-to-day affairs and no material has been produced on record which would indicate that he was in charge of the affairs of the company or was vicariously liable. It has also come on record that the cheques were issued by Sh. Ram Chander Sharma in his individual capacity. The law in this regard is well settled that the resignation of a Director is effective from the date he submits it, because of his intention to resign and it is for the Company to comply with the formalities, required under Section 302 or Section 303 of the Act. It is also no more res integra that the duty of the director is only to give intimation to the company about the resignation and not to fill up Form No. 32 or inform the Registrar of Companies because that is the duty of the Company Secretary and as such, according to the petitioner, in the case on hand when he has produced the record of resignation dated 28-2-1997, that could be taken into consideration and proceedings be quashed. In this connection, a number of decisions right from the case of Glossop v. Glossop (1907) Ch. In this connection, a number of decisions right from the case of Glossop v. Glossop (1907) Ch. D. 370 could be referred to hold that the resignation of a Director becomes effective on and from the date it is tendered or submitted. Since the cheques in question were signed, dishonored and information in this respect was received after the petitioner had resigned on 25/10/2005, he cannot be made liable for the alleged offence as when a Director has tendered his resignation and the Board of Directors has accepted it and has acted on it, such director cannot be held liable for the liability incurred by the said company after the date of acceptance of his resignation. Admittedly, in these two cases also, the company is not the drawer of the dishonoured cheques. In view of the above discussion, the summoning order passed by the court of Ld. ASJ are quashed and the complaint qua him is dismissed. The appeals are allowed. Crl MC No. 2667/2007, Crl MC No. 1597/2007 and Crl MC No. 1637/2007 The petitions are disposed of in the aforenoted terms.