Judgment M.R. Shah, J.—Rule. Mr. Anand B. Gogia, learned advocate waives the service of notice of rule on behalf of the original complainant and Mr. K.P. Raval, learned Additional Public Prosecutor for State, in both these petitions. 1.01. Criminal Misc. Application No. 12631 of 2010 has been preferred by the petitioner - original accused No. 5, under Section 482 of the Code of Criminal Procedure, to quash and set aside the impugned complaint being Criminal Case No. 4120 of 2009 filed by the Respondent No. 1 – original complainant, for the offence punishable under Section 138 of Negotiable Instruments Act, pending in the Court of learned Additional Chief Judicial Magistrate, Gandhidham. 1.02. Criminal Misc. Application No. 12635 of 2010 has been preferred by the petitioner - original accused No. 5, under Section 482 of the Code of Criminal Procedure, to quash and set aside the impugned complaint being Criminal Case No. 5740 of 2009 filed by the Respondent No. 1 – original complainant, for the offence punishable under Section 138 of Negotiable Instruments Act, pending in the Court of learned Additional Chief Judicial Magistrate, Gandhidham. 1.03. Both the aforesaid complaints have been filed by the Respondent No. 1 – original complainant against the accused persons including the petitioner herein under Section 138 of Negotiable Instruments Act, (hereinafter referred to as “the Act” for short) for dishonour of the cheques issued by the original accused No. 1 Company – M/s. R.N. Infra Communications Pvt. Ltd., signed by the original accused Nos. 2 and 3 as the authorised signatory of original accused No. 1 alleging inter-alia that the original complainant is a Company registered under the provisions of the Companies Act, having its office at Gudgav (Haryana) and accused No. 2 is the Chairman; accused No. 3 is the Vice President and accused No. 4 is the Managing Director and accused Nos. 5 and 6 are the Directors of the accused No. 1 Company. That the accused Nos. 2 to 6 are managing the day-to-day affairs of the Company – accused No. 1. That the accused have placed an order for supply of parts of Tower at various locations in India, and as per the purchase orders, they have supplied materials worth Rs. 2,49,21,983 to the original complainant. That the accused Nos. 2 to 6 are managing the day-to-day affairs of the Company – accused No. 1. That the accused have placed an order for supply of parts of Tower at various locations in India, and as per the purchase orders, they have supplied materials worth Rs. 2,49,21,983 to the original complainant. That the accused issued four cheques in question of State Bank of India, Overseas Branch, New Delhi, in favour of the original complainant and the said cheques were given in discharge of the said debts. That the said cheques have been singed by the accused Nos. 2 and 3 as authorised signatory of the accused No. 1. That the said cheques were issued with the consent / knowledge of the accused Nos. 4 to 6. That the accused Nos. 2 to 6 are aware about the issue of the above said four cheques in favour of complainant. That the aforesaid cheques were presented for realisation of the amount of the said cheques which came to be dishonoured due to “payment stopped by drawer”. That thereafter statutory notices were issued to the accused by RP AD. After the receipt of the said notice by the accused, accused did not make payment within stipulated time and therefore, it is alleged that the accused have committed offence punishable under Section 138 of N.I. Act. 1.04. That the learned Chief Judicial Magistrate issued Summonses against the accused persons inclusive of the petitioner - accused No. 5, in the said complaint filed under Section 138 of N.I. Act and hence Being aggrieved by and dissatisfied with the issuance of the Summonses against the petitioner - original accused No. 5 in the aforesaid criminal complaints, filed under Section 138 of N.I. Act, the petitioners - original accused No. 5 has preferred both these petitions under Section 482 of the Code of Criminal Procedure to quash and set aside the aforesaid impugned two complaints. 2.00. Mr. D. Hanumanth Rao, learned Counsel appearing with Ms. 2.00. Mr. D. Hanumanth Rao, learned Counsel appearing with Ms. Sonal Vyas, learned advocate appearing on behalf of the petitioner - original accused No. 5, has vehemently submitted that as such the petitioner - accused No. 5, is an Additional Director in the accused No. 1 Company and is in no manner responsible for day-to-day functioning of the Company and the cheques in question have not been issued by the petitioner, despite which the petitioner is joined as accused in the impugned complaint for dishonour of the cheques in question for the offence punishable under Section 138 of N.I. Act. 2.01. Mr. D. Hanumanth Rao, learned Counsel appearing on behalf of the petitioner - original accused No. 5, has further submitted that as the petitioner was not in charge and day-to-day affairs of the Company and responsible to the conduct of the business of the Company, and since the petitioner who was merely an Additional Director, cannot be held vicariously liable for the offence committed by the Respondent No. 1 and other accused for the offence punishable under Section 138 of N.I. Act. 2.02. Mr. D. Hanumant Rao, learned Counsel appearing on behalf of the petitioner – original accused No. 5 has further submitted that as such the petitioner is an Additional Director in the accused No. 1 Company and is in no manner responsible for day-to-day functioning of the Company. It is submitted that the cheques in question have not been issued by the petitioner, however, the petitioner is implicated in the complaint as an accused for dishonour of the cheque in question for the offence punishable under Section 138 of N.I. Act. 2.03. Mr. D. Hanumant Rao, learned Counsel appearing on behalf of the petitioner – original accused No. 5 has further submitted that as the petitioner was not in charge of or day-to-day affairs of the accused No. 1 Company and/or responsible for the conduct of the business of the accused No. 1 company, the petitioner, who was an Additional Director, cannot be held vicariously liable for the offence under Section 138 of N.I. Act alleged to have been committed by the accused No. 1 Company and others. 2.04. Mr. 2.04. Mr. D. Hanumant Rao, learned Counsel appearing on behalf of the petitioner – original accused No. 5 has further submitted that as such except bear statement that the petitioner – accused No. 5 was managing the day-to-day affairs of the original accused No. 1 Company and that the cheques in question were issued with the consent and knowledge of the original accused No. 5 also and there are no further averments and allegations made in the complaint in support of the same and therefore, the impugned complaint against the petitioner – original accused No. 5 deserves to be quashed and set aside. 2.05. Mr. D. Hanumant Rao, learned Counsel appearing on behalf of the petitioner – original accused No. 5 has heavily relied upon the decisions of Hon’ble Supreme Court in the case of National Small Industries Corporation Limited vs. Harmeet Singh Paintal and Another, reported in (2010) 3 SCC 330 as well as another decision in the case of Central Bank of India vs. M/s. Asian Global Ltd. & Ors., reported in 2010 (6) Scale 467. 2.06. By making above submissions and relying upon above decisions, it is requested to allow both these petitions and quash and set aside the impugned complaints, by submitting that due to criminal proceedings against the petitioner would be unnecessary harassment to the petitioner and abuse of process of law. 3.00. Both these petitions are opposed by Mr. Gogia, learned advocate appearing on behalf of the original complainant. 3.01. Mr. Gogia, learned advocate appearing on behalf of the original complainant has heavily relied upon the Director Profile of the accused Company, which he has obtained from Internet and relying upon the same, it is submitted that it cannot be said that the petitioner is not involved in the day-to-day working or administration of the accused No. 1 Company. 3.02. Mr. Gogia, learned advocate appearing on behalf of the original complainant has further submitted that it has been proved from the Director Profile that substantial funds are invested by the accused No. 1 Company. It is further submitted that admittedly the applicant is representing U-Form Private Limited, which is one of the promoters of the original accused No. 1 i.e. R.N. Infra Communication Pvt. Ltd. 3.03. Mr. It is further submitted that admittedly the applicant is representing U-Form Private Limited, which is one of the promoters of the original accused No. 1 i.e. R.N. Infra Communication Pvt. Ltd. 3.03. Mr. Gogia, learned advocate appearing on behalf of the original complainant has further submitted that as such there are necessary averments and allegations made even against the original accused No. 5 by submitting that the petitioner is also managing day-to-day affairs of the accused No. 1 Company and that cheques in question were issued with the consent and knowledge of the accused Nos. 4 to 6 and that accused Nos. 2 to 6 (inclusive of the accused No. 5) are aware about issue of 4 cheques in question in favour of the complainant. Therefore, it is submitted that in view of the above specific averments and allegations against the petitioner – accused No. 5 also, the impugned complaints are not required to be quashed and set aside in exercise of powers under Section 482 of the Code of Criminal Procedure. 3.04. Mr. Gogia, learned advocate appearing on behalf of the original complainant has further submitted that the contentions raised by the petitioner – accused No. 5, as such all are the defences of the petitioner accused and the cannot be considered at this stage and the same are required to be considered at the time of trial. 3.05. Mr. Gogia, learned advocate appearing on behalf of the original complainant has further submitted that even the petitioner has change his stand from time to time in different matters. It is submitted that in Criminal Misc. Application No. 10654 of 2010 filed before this Court, it is the case on behalf of the petitioner herein that he is only a nominal Director of accused No. 1 Company. It is submitted that in Criminal Misc. Application No. 391 of 2010 which was filed before the Additional Sessions Judge, Gandhinagar for anticipatory bail, the applicant has come out with a case that he is on the prestigious post of the Company. It is submitted that It is submitted that even the petitioner has mentioned the address of the accused No. 1 Company as his address. Submitting accordingly, it is requested to dismiss both these petitions. 3.06. It is submitted that It is submitted that even the petitioner has mentioned the address of the accused No. 1 Company as his address. Submitting accordingly, it is requested to dismiss both these petitions. 3.06. Mr.Gogia, learned advocate appearing on behalf of the original complainant has relied upon the decision of Hon’ble Supreme Court in the case of K.K. Ahuja vs. V.K. Vora and Another, reported in (2009) 10 SCC 48 . It is further submitted that in the case of K.K. Ahuja (Supra), Hon’ble Supreme Court has specifically observed and held that the persons / officers who were in charge of and also responsible for the conduct of the business of the Company and vicariously liable for the offence of the Committed and hence in a complaint under Sections 138 and 141 of the N.I. Act, no specific averments as to role of each is required. It is submitted that as held by Hon’ble Supreme Court in the said decision, duly affirmed sworn statement to that effect may be sufficient. By making above submissions and relying upon above decision, it is requested to dismiss both these petitions. 4.00. In reply to the submissions made by Mr. Gogia, learned advocate appearing on behalf of the original complainant, learned Counsel appearing on behalf of the petitioner - accused No. 5 has submitted that even considering the Director Profile, which has been relied upon by the complainant, it cannot be said that the petitioner is in-charge of day-to-day affairs and conduct of the accused Company. Learned advocate appearing on behalf of the original complainant has further submitted that even otherwise, the Director Profile of the Company cannot be considered as conclusive proof to show that the petitioner was Director of the Company. It is submitted that on the contrary, the petitioner has produced Form No. 32 and extract of the Register of the Companies to prove and show that the petitioner was at the relevant time Additional Collector of the accused No. 1 Company. 4.01. The learned advocate appearing on behalf of the petitioner has relied upon the Section 260 of the Companies Act. 4.02. 4.01. The learned advocate appearing on behalf of the petitioner has relied upon the Section 260 of the Companies Act. 4.02. The learned advocate appearing on behalf of the petitioner Accused has submitted that even the decision of Hon’ble Supreme Court in the case of KK Ahuja relied upon the learned advocate appearing on behalf of the original complainant came to be subsequently considered by Hon’ble Supreme Court in the case of Harmeet Singh Paintal and Another (Supra) and even considering the said decision, Hon’ble Supreme Court has held that in case of Director of the Company, complainant should specifically spell out how and in what manner the Director was in-charge of or was responsible to the Accused Company for conduct of its business and that mere bald statement that he was in-charge of and responsible to the Company for the conduct of his business is not sufficient. Therefore, it is requested to allow both these petitions. 5.00. Heard the learned advocates appearing on behalf of the respective parties at length. 5.01. At the outset, it is required to be noted that so far as the petitioner – original accused No. 5 is concerned, he is alleged to be Director of the Accused No. 1 Company who issued cheques in question. It is an admitted position that so far as the petitioner – original accused No. 5 is concerned, he is not signatory to the cheques in question. He is neither Chairman, Vice President or Managing Director of the accused No. 1 Company. Thus, the complaint against the petitioner is for the offence punishable under Section 138 of N.I. Act for dishonour of cheques issued by the original accused No. 1 Company, of which the petitioner is alleged to be the Director. The petitioner is sought to be vicariously liable in view of Section 142 of N.I. Act for the offence alleged to have been committed by the original accused No. 1 Company. The following are the necessary averments and allegations in the respective complaints against the petitioner Accused :— “2. That accused No. 1 is a company, Registered under the provisions of The Indian Companies Act, 1956 and having its office at Gurgaon (Haryana) and accused No. 2 is the Chairman, accused No. 3 is the Vice President, accused No. 4 is Managing Director and accused No. 5 and 6 are the Directors of accused No. 1 Company. That accused No. 1 is a company, Registered under the provisions of The Indian Companies Act, 1956 and having its office at Gurgaon (Haryana) and accused No. 2 is the Chairman, accused No. 3 is the Vice President, accused No. 4 is Managing Director and accused No. 5 and 6 are the Directors of accused No. 1 Company. That accused No. 2 to 6 are managing the day to day affairs of the company / accused No. 1.” “That the said cheques have been signed by accused No. 2 and 3 as the Authorised Signatory of accused No. 1. That the said cheques were issued with the consent / knowledge of the accused No. 4 to 6. That accused No. 2 to 6 were aware about the issue of above said four cheques in favour of the complainant.” Except the above there are no further averments and/or allegations against the petitioner - the original accused No. 5. In light of the above averments and allegations against the petitioner – accused No. 5, who is an Additional Director of the accused No. 1 Company it is required to be considered as to whether on the basis of the aforesaid averments and allegations, the petitioner – accused No. 5 can be held to be vicariously liable for the offence alleged to have been committed by the accused No. 1 Company and he is to be prosecuted for the same?. 5.02. The learned advocate appearing on behalf of the original complainant has heavily relied upon the “Director Profile” of the accused Company in support of his case that as per the “Director Profile” the petitioner is shown to be a Director and not an Additional Director. The “Director Profile” of the accused Company with respect to the petitioner which has been relied upon by the original complainant reads as under:— “Jagannath Sarangapani (Director). Mr. Jagannath Sarangapani is the Masters in Mechnical Engineer from case Western Reserve University from Cleveland USA. He has 14 years of core manufacturing experience and start up of new divisions of U-Form, which he has impleaded since his return from the US and joining his family business in 1991. Having successfully demonstrated the Indian initiative in creation of Cellular Base station sites in the form of prefabricated telecommunication shelters. He has 14 years of core manufacturing experience and start up of new divisions of U-Form, which he has impleaded since his return from the US and joining his family business in 1991. Having successfully demonstrated the Indian initiative in creation of Cellular Base station sites in the form of prefabricated telecommunication shelters. U-Form today under Jagannath’s stewardship has carried out activities practically in all states and has made a strong presence in the entire country. He is representing U-Form private Limited which is one of the promoters of R.N. Infra Communication Private Limited. He is Dy. Managing Director of U-Form (P) Ltd. And Director of this company. Cept to design, implementation, optimization, operations and maintenance with quality and timely delivery to enhance the competitiveness, profitability and costs effectiveness of the end customer.” From the aforesaid it is said to be submitted on behalf of the complainant that the petitioner is neither nominal Director nor he can be said to be not involved in day-to-day working or association of the accused Company. From the aforesaid Profile it cannot be said that the petitioner is in day-to-day working or administration of the original accused No. 1 Company. It is true that in the said Profile it is mentioned that the petitioner is designed as Director, however, against which the petitioner has already produced Form No. 32 issued by the Registrar of Companies, in which it has been specifically mentioned that the petitioner has been appointed as Additional Director. Thus, it appears that the petitioner is an Additional Director in the original accused No. 1 Company. The averments and allegation against the petitioner in the complaint are the only which are reproduced hereinabove. 5.03. Thus, it appears that the petitioner is an Additional Director in the original accused No. 1 Company. The averments and allegation against the petitioner in the complaint are the only which are reproduced hereinabove. 5.03. Identical question came to be considered by Hon’ble Supreme Court in the recent decision in the case of Harmeet Singh Paintal and Another (Supra) wherein Hon’ble Supreme Court was considering vicarious liability of the Director of the Accused Company for the offence punishable under Sections 138, 141 and 142 of the N.I. Act and considering various earlier decisions of Hon’ble Supreme Court, the Hon’ble Supreme Court has specifically observed and held that in case of a Director, complaint for the offence punishable under Sections 138, 141 and 142 of the N.I. Act should specifically spell out how and in what manner the Director was in Charge of or was responsible to the accused Company for the conduct of its business. It is specifically observed and held by Hon’ble Supreme Court in the said decision that mere bald statement that accused was Director and was in charge of and/or responsible to the Company for the conduct of its business, is not sufficient. It is further observed and held by Hon’ble Supreme Court in the said decision that in absence of specific averments as to the role of the co-accused – Director, High Court has rightly quashed the Summons issued by the trial Court against such Director. In the case of Harmeet Singh Paintal and Another (Supra), in Paras 12, 22 and 29 has observed and held as under:— “12. It is very clear from the above provision that what is required is that the persons who are sought to be made vicariously liable for a criminal offence under Section 141 should be, 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. Every person connected with the company shall not fall within the ambit of the provision. Only those persons who were in charge of and responsible for the conduct of the business of the company at the time of commission of an offence will be liable for criminal action. Every person connected with the company shall not fall within the ambit of the provision. Only those persons who were in charge of and responsible for the conduct of the business of the company at the time of commission of an offence will be liable for criminal action. It follows from the fact 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 for a criminal offence under the provisions. The liability arises from being in charge of and responsible for the conduct of the business of the company at the relevant time when the offence was committed and not on the basis of merely holding a designation or offence in a company.” “22. Therefore, This Court has distinguished the case of persons who are in charge of and responsible for the conduct of the business of the company at the relevant time of the offence and the persons who are merely holding the post in a company and are not in charge of and responsible for the conduct of the business of the company. Further, in order to fasten the vicarious liability in accordance with Section 141, the averments as to the role of the Directors concerned should be specific. The description should be clear and there should be some unambiguous allegations as to how the Directors concerned were alleged to be in charge of and were responsible for the conduct and affairs of the company.” “29. Relying on the judgement of this Court in Everest Advertising (P) Ltd. vs. State (Govt. of NCT of Delhi), [ (2007) 5 SCC 54 ], learned Counsel for the appellants argued that this Court has not allowed the recalling of summons in a criminal complaint filed under Sections 138 and 141. However, a perusal of the judgement would reveal that this case was of recalling of summons by Magistrate for which the Magistrate had no jurisdiction. Further, Para 23 at p. 63 of the judgement would reveal that in the complaint, “23. However, a perusal of the judgement would reveal that this case was of recalling of summons by Magistrate for which the Magistrate had no jurisdiction. Further, Para 23 at p. 63 of the judgement would reveal that in the complaint, “23. ...allegations have not only been made in terms of the wordings of Section but also at more than one place, it has categorically been averred that the payments were made after the meetings held by and between the representatives of the Company and Accused 1 to 5 which would include Respondents 2 and 3.” 5.04. Now, so far as decision of Hon’ble Supreme Court in the case of KK Ahuja (Supra) relied upon by the learned advocate appearing on behalf of the original complainant is concerned, it is to be noted that the said decision came to be considered by Hon’ble Supreme Court in the case of Harmeet Singh Paintal and Another (Supra) wherein in Para 33, Hon’ble Supreme Court has observed and held as under:— “33. Though, the learned Counsel for the appellants is relying on a recent decision I.e. in K.K. Ahuja vs. V.K. Vora [ (2009) 10 SCC 48 ] it is clearly recorded that in the complaint it was alleged that the accused were in charge of and were responsible for the conduct of the day-to-day business of the accused company and further all the accused were directly and actively involved in the financial dealings of the Company and the same was also reiterated in the presummoning evidence. Furthermore, this decision also notes that it is necessary to specifically aver in a complaint that the person accused was in charge of and responsible for the conduct of the business of the Company.” Therefore, decision of Hon’ble Supreme Court In the case of KK Ahuja (Supra) relied upon by the learned Counsel appearing on behalf of the complainant would not be of any assistance to the original complainant in view of subsequent recent decision of Hon’ble Supreme Court in the case of Harmeet Singh Paintal and Another (Supra). 5.05. 5.05. In view of the aforesaid facts and considering relevant averments and allegations made in the complaint against the petitioner – original accused No. 5 and taking the same as it is and considering the decision of Hon’ble Supreme Court in the case of Harmeet Singh Paintal and Another (Supra), to continue the criminal proceedings filed by the original complainant against the petitioner – original accused No. 5 would be unnecessary harassment to the petitioner and abuse of process of law and therefore, it appears that on the averments made against the petitioner in the complaint, the learned Chief Judicial Magistrate, Gandhidham-Kutch has materially erred in issuing Summons against the petitioner–original accused No. 5 for the offence punishable under Section 138 read with Section 141 of the N.I. Act. Under the circumstances the same deserve to be quashed and set aside. 5.06. In view of the above and for the reasons stated above, both these petitions succeed. The impugned order passed by the learned Chief Judicial Magistrate, Gandhidham-Kutch in the complaints being Criminal Case No. 4120 of 2009 as well as Criminal Case No. 5740 of 2009, dated 3/9/2009 and 1/1/2010 respectively, pending in the Court of learned Chief Judicial Magistrate, Gandhidham-Kutch issuing process against the petitioner– original accused No. 5 for the offence punishable under sections 138 of the Negotiable Instruments Act, are hereby quashed and set aside QUA petitioner herein – original accused No. 5 named JAGANNATH SARANGAPANI only and consequently proceedings of aforesaid two impugned complaints being Criminal Case No. 4120 of 2009 as well as Criminal Case No. 5740 of 2009 are hereby terminated QUA present petitioner – original accused No. 5 named JAGANNATH SARANGAPANI, only. Rule is made absolute accordingly in both the applications. P P P P P