Judgment : This application under Section 482 of the Code of Criminal Procedure praying for quashing of the proceeding in C. Case No.657 of 2002 and the orders passed therein on 15.2.2002 and 3.9.2010 has been filed at the instance of T. C. Dutta, Chairman, Shamon Ispat Ltd., the accused No.3 in the abovementioend case mainly on the ground that he being the Chairman of the accused Company is not vicariously liable for the alleged offence under Section 138 of the Negotiable Instrument Act and that the averments made in the petition of complaint are not sufficient enough to fulfill the requirements of Section 141 of the N. I. Act. The criminal action was brought by Industrial Development Bank of India against Shamon Ispat Ltd. and other five including petitioner T. C. Dutta, the Chairman of Shamon Ispat Ltd. Under section 138 read with Section 141 of the N. I. Act as the cheques issued by Shamon Ispat Ltd. In discharging legal liability could not be encashed on presentation in the bank because of instructions ‘stop payment’. When those cheques were returned back to the complainant Bank with such an endorsement by its banker, it sent a demand notice within statutory period of time but the Shamon Ispat Ltd. and the other accused including the petitioner herein failed to make payment despite receiving the notice. The specific question of law, in fact, has been raised in this case is what would be the necessary averments one must make in a petition of complaint to fasten a Chairman of the Company besides the Company, Managing Director, Financial Controller and Directors in view of Section 141 of the Negotiable Instrument Act. Mr. Pratik Bhattacharyya, learned Counsel appearing on behalf of the petitioner has taken me to the petition of complaint, paragraphs 3, 9 and 10. The said paragraphs 3, 9 and 10 are set out hereunder; “3) The Complainant i.e. IDBI a statutory corporation established under Industrial Development of India Act, 1964 for the purpose of providing credit and other facilities for development of industries. The Accused o.1 is a company within the meaning of Companies Act, 1956 and is engaged in manufacture of galvanizing grade of Cold Rolled (CR) sheets at Mouza- Debhog, Haldia, Dist.-Midnapore, in the State of West Bengal (hereinafter referred to as the “said Project”). The Accused o.1 is a company within the meaning of Companies Act, 1956 and is engaged in manufacture of galvanizing grade of Cold Rolled (CR) sheets at Mouza- Debhog, Haldia, Dist.-Midnapore, in the State of West Bengal (hereinafter referred to as the “said Project”). The Accused Nos.2, 3, 4, 5 and 6 are the Managing Director, Chairman, Director, Director and Finance Controller respectively of the Accused No.1 and as such they are in charge of and responsible to the Accused No.1 for conduct of its day-to-day business specifically when the Complainant described hereinafter was concerned. xxx xxx xxx 9) That on receipt of the said written memos dated 18.12.2001, 24.12.2001 and 31.12.2001, the Complainant issued Notices on December 31, 2001 and on January 10, 2002, demanding the payment from the Accused No.1 to 6 in terms of Section 138 of N. I. Act, 1881 as amended upto date. The said demand Notices were received by the Accused No.1 to 6 on January 7, 2002 and January 14, 2002 respectively and a copy each of the demand notice and all the acknowledgement cards are annexed hereto and are collectively marked as Annexures – “J”, “K”, “L1 to L6” & “M1 to M6” respectively. 10) The Complainant further states that despite the demand Notices having been received and even after the expiry of 15 days of the receipt of Notice of demand, the Accused No.1 failed to pay the dues whereby they have committed an offence under Section 138 read with Section 141 of N. I. Act, 1881 and hence this complaint is filed before the Hon’ble Court. The aforesaid act of the accused persons rendered themselves liable to be prosecuted under the provisions of the N. I. Act, 1881 as amended upto date. Since the Accused Nos.2 to 6 were managing the affairs of the Accused No.1 and are also responsible for the day-to-day business of the Accused No.1 and the offences committed in this transaction they have also committed the offence U/s. 138 read with Section 141 of N. I. Act, 1881.” Mr. Bhattacharyya has contended that the averments mentioned above do not fulfill the requirement of Section 141 of the Act. In support of his contention, Mr. Bhattacharyya refers to the decision of the Hon’ble Apex Court in K. K. Ahuja Vs. V. K. Vora & Anr., reported in (2009) 10 SCC 48 , Sabitha Ramamurthy & Anr. Vs. Bhattacharyya has contended that the averments mentioned above do not fulfill the requirement of Section 141 of the Act. In support of his contention, Mr. Bhattacharyya refers to the decision of the Hon’ble Apex Court in K. K. Ahuja Vs. V. K. Vora & Anr., reported in (2009) 10 SCC 48 , Sabitha Ramamurthy & Anr. Vs. R. B. S. Channabasavaradhya, reported in 2006 Cri. L. J. 4602, National Small Industries Corporation Ltd. Vs. Harmeet Singh Pantal & Anr., reported in (2010) 3 SCC 330 . Mr. Shyamsundar Manna, learned Counsel appearing on behalf of the opposite party refers to the decision of S. M. S. Pharmaceuticals Ltd. Vs. Neeta Bhalla & Anr., reported in (2005) 8 SCC 89 and 2007 (2) Supreme 459 and contended that in order to attract Section 141 of the N. I. Act, a complaint is only required to make an averment to the effect that the persons named as accused in the complaint was responsible to the Company and day to day business of the same at the relevant period of time when the cheque in question was drawn by the Company. Since the petitioner was the Chairman of the Company and was responsible to the day to day business of the company at the relevant period of time when the cheque in question was drawn, was vicariously liable for the offence under Section 138 of the N. I. Act together with the Company and others. He has also drawn attention of this Court to the averments of paragraphs 3, 9 and 10 of the petition of complaint and has contended that the averments therein are sufficient enough to fulfill the requirements of Section 141 of the Act in view of the decision in S. M. S. Pharmaceuticals Ltd. (Supra). Mr. Manna, learned Counsel for the opposite party also refers to the decisions of the Hon’ble Apex Court in Paresh P. Rajda Vs. State of Maharastra & Anr., reported in (2008) 7 SCC 442 , two decisions of this Court one in C.R.R.1001 of 1999 (Fateh Chand Bhansali Vs. Hindusthan Development Corporation Ltd.) and another in Sri Cheddi Lal Gupta Vs. Shri Suresh Damani & Ors., reported in 2009 (2) CLJ (Cal.) 295. In S. M. S. Pharmaceutical Lt. State of Maharastra & Anr., reported in (2008) 7 SCC 442 , two decisions of this Court one in C.R.R.1001 of 1999 (Fateh Chand Bhansali Vs. Hindusthan Development Corporation Ltd.) and another in Sri Cheddi Lal Gupta Vs. Shri Suresh Damani & Ors., reported in 2009 (2) CLJ (Cal.) 295. In S. M. S. Pharmaceutical Lt. (First and Second) (Supra), the Hon’ble Apex Court, however, has not laid down that a stereo typed routine reproduction of the language of Section 141 of the Act is sufficient enough to fulfill the requirement of Section 141 of the Act in order to fasten a Director or a Chairman, for merely being holding of post of Director or Chairman of the Company. Mr. Manna, learned Counsel appearing for the opposite party has contended that the decision of the Hon’ble Apex Court in S. M. S. Pharmaceutical Ltd. (Supra) is the law laid down by the Apex Court in this regard which has never been declared per incurium by any Court. In S. M. S. Pharmaceutical Ltd. (Supra), the Hon’ble Court held as under; “To sum up, there is almost unanimous judicial opinion that necessary averments ought to be contained in a complaint before a person can be 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.” In Second S. M. S. Pharmaceuticals Ltd.- 2007 (2) Supreme 459 , the same principle has been reiterated and it was held; “Section 141 of the Act does not say that a Director of a company shall autocratically be vicariously liable for commission of an offence on behalf of the company and what is necessary sufficient averment should be made to show that the person who is sought to be proceeded against on the premise of his being vicariously liable for commission of an alleged offence by the company must be incharge and shall also be responsible to the company in the conduct of its business.” The decision in Saroj Kumar Poddar (Supra) which is banked upon by the petitioner has been referred to in second SMS case wherein the same Hon’ble Judge who spoke in Saroj Kr. Poddar case wrote the following lines; “A faint suggestion was made that this Court in Saroj Kumar Poddar (Supra) has laid down the law that the complaint petition not only must contain averments satisfying the requirements of section 141 of the Act but must also show as to how and in what manner the appellant was responsible for the conduct of the business of the company or otherwise responsible to it in regard to its functioning. A plain reading of the said judgment would show that no such general law was laid down therein. The observation that although no direct averment was made as against the appellant of the said case fulfilling the requirements of section 141 of the Act, but there were other averments which would show that the appellant therein was liable therefore.” In N. Rangachari Vs. BSNL, reported in 2007 (2) Law Herald ( SC ) 1379, the Hon’ble Apex Court observed; “A person normally having a business or commercial dealing with a company, would satisfy himself about its creditworthiness and reliability by looking at its promoters and Board of Directors and the nature and extent of its business and its Memorandum or Articles of Association. BSNL, reported in 2007 (2) Law Herald ( SC ) 1379, the Hon’ble Apex Court observed; “A person normally having a business or commercial dealing with a company, would satisfy himself about its creditworthiness and reliability by looking at its promoters and Board of Directors and the nature and extent of its business and its Memorandum or Articles of Association. Other than that, he may not be aware of the arrangements within the company in regard to its management, daily routine, etc. Therefore, when a cheque issued to him by the company is dishonoured, he is expected only to be aware generally of who are incharge of the affairs of the company. It is not reasonable to expect him to know whether he has been deprived of his authority to do so when he actually signed the cheque. Those are matters peculiarly within the knowledge of the company and those in charge of its. So, all that a payee of cheque that is dishonoured can be expected to allege is that the persons named in the complaint are in charge of its affairs. The Directors are prima facie in that position.” In Cheddilal Gupta (Supra), the Hon’ble Single Judge of this Court was pleased to go detailed over the issue and discussed the decisions of the Hon’ble Apex Court in S. M. S. Pharmaceutical Ltd. (Supra), Sabitha Ramamurthy & Anr. (Supra), Soroj Kumar Poddar Vs. State (NCT of Delhi), reported in 2007 (2) C Cr. L. R. (SC) 187, elaborately. The decision of K. K. Ahuja (Supra) and National Small Industries Corporation Ltd. (Supra) were not taken into consideration by the Hon’ble Single Judge in Chedilal Gupta (Supra). In Paresh P. Rajda (Supra), the Hon’ble Apex Court had no occasion to take into consideration of its decision in K. K. Ahuja (Supra) and National Small Industries Ltd. (Supra). In National Small Industries Ltd. (Supra), the Hon’ble Court held; “( i ) The primary responsibility is on the complainant to make specific averments as are required under the law in the complaint so as to make the accused vicariously liable. For fastening the criminal liability, there is no presumption that every Director knows about the transaction. (ii) Section 141 does not make all the Directors liable for the offence. For fastening the criminal liability, there is no presumption that every Director knows about the transaction. (ii) Section 141 does not make all the Directors liable for the offence. The criminal liability can be fastened only on those who, at the time of the commission of the offence, were in charge of and were responsible for the conduct of the business of the company. (iii) Vicarious liability can be inferred against a company registered or incorporated under the Companies Act, 1956 only if the requisite statements, which are required to be averred on the complaint/petition, are made so as to make the accused therein vicariously liable for offence committed by the company along with averments in the petition containing that the accused were in charge of and responsible for the business of the company and by virtue of their position they are liable to be proceeded with. (iv) Vicarious liability on the part of a person must be pleaded and proved and not inferred. (v) If the accused is a Managing Director or a Joint Managing Director then it is not necessary to make specific averment in the complaint and by virtue of their position they are liable to be proceeded with. (vi) If the accused is a Director or an officer of a company who signed the cheques on behalf of the company then also it is not necessary to make specific averment in the complaint. (vii) 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.” While dismissing the appeals, the Hon’ble Court held; “In the light of the above discussion and legal principles, we are in agreement with the conclusion arrived at by the High Court and in the absence of specific averment as to the role of the respondents and particularly in view of the acceptable materials that at the relevant time they were in no way connected with the affairs of the Companies, we reject all the contentions raised by the learned Counsel for the appellants.” Mr. Manna, Learned Counsl appearing for the opposite party has contended that it was not held by the Apex Court that the complainant has to disclose in the complaint as to how the Director is responsible for the conduct of the business of the company or part played by him in the transaction. It is true that in S. M. S. Pharmaceutical Ltd., N. Rangachari (Supra) as well as K. K. Ahuja (Supra), it has not been categorically held that there has to be a specific averment as to how a particular Director is responsible or of the exact role played by him in the transaction. In the instant case, the averments in the petition of complaint which has already been reproduced earlier are nothing but, in fact and in substance, the reproduction of languages in Section 141. The petitioner herein is the Chairman of the accused No.1 i.e. the Company. The combined reading of Section 5 and 291 of the Companies Act, 1956 with the definition in Clause (24), (26), (30), (31), (45) of Section 2 of that Act would show that the following persons are considered to be the persons who are responsible to the company for the conduct of the business of the company. The combined reading of Section 5 and 291 of the Companies Act, 1956 with the definition in Clause (24), (26), (30), (31), (45) of Section 2 of that Act would show that the following persons are considered to be the persons who are responsible to the company for the conduct of the business of the company. “a) the Managing Director/s; b) the whole-time Director/s; c) the Manager; d) the Secretary; e) any person in accordance with whose directions or instructions the Board of Directors of the company is accustomed to act; f) any person charged by the Board of Directors with the responsibility of complying with that provision; Provided that the person so charged has given his consent in this behalf to the Board; g) where any company does not have any of the officers specified in clauses (a) to (c ), any director or directors who may be specified by the Board in this behalf or where no director is so specified, all the directors; Provided that where the Board exercises any power under clause (f) or clause (g), it shall, within thirty days of the exercise of such powers, file with the Registrar a return in the prescribed form.” The Hon’ble Apex Court observed in National Small Industries (Supra) as under; “ But if the accused is not one of the persons who falls under the category of “persons who are responsible to the company for the conduct of the business of the company” then merely by stating that “he was in-charge of the business of the company” or by stating that “he was in-charge of the day-to-day management of the company” or by stating that “he was in-charge of, and was responsible to the company for the conduct of the business of the company”, he cannot be made vicariously liable under Section 141(1) of the Act. To put it clear that for making a person liable under Section 141 (2), the mechanical repetition of the requirements under Section 141 (1) will be of no assistance, but there should be necessary averments in the complaint as to how and in what manner the accused was guilty of consent and connivance or negligence and, therefore, responsible under sub-section (2) of Section 141 of the Act.” The petitioner herein admittedly is the Chairman of the Company and is not the Managing Director or the Financial Director or Director in-charge of the day to day business of the company. Issuance of cheque of the company is not a function of a Chairman of a Company. The Chairman can at best be held responsible for policy making decision of the Company. That is why he is kept outside the Section 5 and Section 291 of the Companies Act amongst the person who are responsible to the company for the conduct of the business of the company. In National Small Industries Corporation Ltd. (Supra) while dealing with many appeals, the Hon’ble Apex Court had taken note of the specific averment in the petition of complaints; “that accused no.2 is the Managing Director and accused no.3 is the Director of the accused company. Accused Nos.2 and 3 are in charge and responsible for the conduct of the business of the company, accused no.1 and hence are liable of the offence.” In another petition of complaint before the Hon’ble Apex Court in that case, the averments were as under; “that accused no.1 is a company/firm and accused nos.2 to 9 were in charge and were responsible to the accused no.1 for the conduct of the business at the time when offence was committed. Hence, accused nos.2 to 9 in addition to accused no.1, are liable to be prosecuted and punished in accordance with law by this Hon’ble Court as provided of Section 141 of the N. I. Act, 1981. Hence, accused nos.2 to 9 in addition to accused no.1, are liable to be prosecuted and punished in accordance with law by this Hon’ble Court as provided of Section 141 of the N. I. Act, 1981. Further the offence has been committed by the accused no.1 with the consent and connivance of the accused nos.2 to 9.” The Hon’ble Court came to the finings that : “ In the light of the above discussion and legal principles, we are in agreement with the conclusion arrived at by the High Court and in the absence of specific averment as to the role of the respondents and particularly in view of the acceptable materials that at the relevant time they were in no way connected with the affairs of the company, we reject all the contentions raised by learned counsel for the appellants. Consequently, all the appeals fail and are accordingly dismissed.” (Emphasis put in) In the facts of the case in hand are similar to that of cases before the Apex Court in National Small Industries Corporation Ltd. (Supra). The averment in the petition of the complaint made against the present petitioner cannot be said to be specific averment as to his role in the matter of issuance of alleged cheques by the accused No.1 company and the Managing Director of it (accused No.2). He is the Chairman of the company and is not supposed to be a person responsible for day to day business of the company. Therefore, the bald cursory statement in the petition of complaint does not appear to be sufficient enough to fulfill the requirements of Section 141 of the N. I. Act in order to fasten him for alleged offence under Section 138 of the Act committed by the company. In view of discussions above, I allow the application. The prosecution in C. Case No.657 of 2002 pending in the Court of the Metropolitan Magistrate, 6th Court, Calcuttabe quashed as far as this petitioner T. C. Dutta is concerned. The interim order of stay, if any, stands vacated. The revisional application stands disposed of.