Hon’ble Naheed Ara Moonis, J. : Heard the learned counsel for the applicant, learned counsel appearing on behalf of the opposite party no.2, learned A.G.A. and perused the record.2. The instant petition has been filed for quashing the proceedings initiated against the applicant in Complaint Case No. 2446 of 2008 (M.L. Sons Creation Vs. Iqra International, Mariyahu through its Partner Yunus) under Section 138 Negotiable Instruments Act, police station Bhadohi, district Sant Ravi Das Nagar. The complaint was filed on behalf of M.L. & Sons through its proprietor Sanjay Dubey on 10.6.2008 that the applicant’s firm had purchased carpets of Rs. 4,02,410.25/- from the complainant firm and four cheques of different dates in respect of the aforesaid payment were given. Th details of which are asunder;(i) Cheque No. 012414 dated 4.2.2008 of Rs. 1,10,000/-;(ii) Cheque No. 012415 dated 21.2.2008 of Rs. 90,000/-;(iii) Cheque No. 012416 dated 21.2.2008 of Rs. 1,00,000/-; and(iv) Cheque No. 012417 dated 25.2.2008 of Rs. 1,00,000/-.3. The first cheque was presented to the Bank on 4.2.2008 but it was returned with the bank endorsement that amount was insufficient. The complainant immediately informed to the applicant but he had assured that the payment of the cheques will be done together and on his assurance when all the four cheques were again presented on 16.4.2008 were dishonoured and when the complainant again informed him through telephone the applicant had assured him that there is some delay in getting money from outside the country, therefore, he could again present the cheque and the money will be paid after 20 days. The complainant again presented the aforesaid four cheques on 9.5.2008 at I.D.B.I. Branch, Singra, Varanasi but the cheques were returned with the endorsement that on account of insufficient fund, thereafter a registered notice was sent on 19.5.2008 to the applicant and after receiving the notice a complaint was filed under Section 138 Negotiable Instruments Act. The complainant had filed the original cheque with the endorsement of the Bank and the receipt of notice given through Advocate was filed in support of the complaint. The learned Chief Judicial Magistrate, Bhadohi prima facie found that a case under Section 138 Negotiable Instruments Act is made out against the applicant hence taken cognizance and issued summons by order dated 22.10.2008.4. It is contended by the learned counsel for the applicant that the court below has erred in summoning the applicant. The learned Chief Judicial Magistrate, Bhadohi prima facie found that a case under Section 138 Negotiable Instruments Act is made out against the applicant hence taken cognizance and issued summons by order dated 22.10.2008.4. It is contended by the learned counsel for the applicant that the court below has erred in summoning the applicant. There is no specific averment in the complaint with regard to the responsibility as to whether the partner or the firm is responsible for issuing the cheques. The cheques in question were given as a security and in other words it ought to have been mentioned that the company or association had committed the offence. The applicant who is partner through whom the notice has been served while the present complaint shows that the case has been registered against the firm.5. It is contended by the learned counsel for the applicant that the court below has erred in summoning the applicant as the four cheques which were given to the complainant firm were post dated cheques and was given as security that when payment is made to the firm by the applicant the cheque would be returned by them. In the complaint it has not been mentioned as to whether the company had committed any offence. The complaint has been instituted against the firm and not against the partner. Neither the firm nor the partner but also the present applicant had received notice as alleged in the complaint. The applicant only came to know about the complaint case registered against him when he went to take due amount of payment from the complainant and the complainant firm refused to return the post dated cheques. The applicant had already made a payment of Rs. 1,90,000/- on 13.5.2008 to the complainant firm yet the complaint has been made on false allegation, which is not at all maintainable against the applicant who is not party to the proceedings, therefore, the summoning order passed against him is liable to be quashed. It has further been contended that when the said order was challenged by moving the present 482 petition this Court after considering facts and circumstances of the case passed an order on 5.3.2009 directing the Managing Director/duly authorised Agent to be personally present before the court with the cheques/bank draft of total amount, which is due against him. The case was fixed for 1.4.2009. The applicant Mohd. The case was fixed for 1.4.2009. The applicant Mohd. Yunus as well as the Managing Director Sanjay Dubey were present on that day and in the presence of the learned counsel for the opposite party no.2 the order was passed that as agreed between both the parties applicant is allowed two months time to pay Rs. 2,10,000/- and the court pleased to direct both the persons to be personally present on the next date. On 20.5.2009 the applicant produced the bank draft of Rs. 2,10,000/- dated 26.5.2009 but the counsel for the opposite party no.2 refused to accept the amount and the court had observed that the learned counsel for the opposite party no.2 states’”that the amount due is much more than than this amount, therefore, if this amount paid rights of opposite party no.2 for contesting the matter for remaining amount would be jeopardized.”6. Therefore, once the opposite party no. 2 had accepted and admitted before the court that the amount of Rs. 2,10,000/- is only to be paid by the applicant but subsequently rescinding to receive the draft itself shows that the complainant initially accepted Rs. 1,90,000/- and therefore the only claim of Rs. 2,10,000/- was remaining and who is still ready to pay the said amount since the substantial amount has already been done, therefore, the present complaint is not maintainable.7. Per contra learned counsel appearing on behalf of the opposite party no. 2 has contended that the cheques in question were duly signed by the applicant Mohd. Yunus in the capacity of partner of the firm and therefore the offence has been committed by both the company as well as its employee who was responsible for managing the day to day affair of the company despite notice was duly served upon the applicant as required under the Negotiable Instruments Act but the applicant had not made any payment. The complaint was filed against the firm and the applicant Mohd. Yunus had signed and issued the cheques for Account No. 132 of M/s. Iqra International, therefore, the proceedings against the firm and its employee who is responsible for managing of the affairs of the firm fulfils the requirement of Section 141 of Negotiable Instruments Act. The complaint was filed against the firm and the applicant Mohd. Yunus had signed and issued the cheques for Account No. 132 of M/s. Iqra International, therefore, the proceedings against the firm and its employee who is responsible for managing of the affairs of the firm fulfils the requirement of Section 141 of Negotiable Instruments Act. The applicant had not filed the reply of the notice within the stipulated period in respect of the cheques which were dishonoured on account of insufficient of the funds in the account, which were issued for the discharge of liability of business transaction by Mohd. Yunus being partner of the firm, therefore, the court below has rightly summoned the applicant under Section 138 Negotiable Instruments Act.8. I have considered the submissions of the learned counsel for the parties and I do not find any force in the argument of the learned counsel for the applicant as four cheques were issued by the applicant and when it was deposited in the bank for payment it was dishonoured having insufficient funds thereafter the notice was issued by the opposite party no.2, which was duly served but neither any reply nor payment was made to the opposite party no.2 by the applicant and ultimately the complaint filed by the complainant before the court as such the requirement of Section 138 Negotiable Instruments Act has been made out without there being any delay, therefore, the offence punishable under Section 138 Negotiable Instruments Act prima facie made out against the applicant. Section 138 Negotiable Instruments Act refers about the default in case of dishonour of cheque for insufficient of funds in the account and Section 141 Negotiable Instruments Act deals with the offences by companies, which read as under;”141. Offences by companies. Section 138 Negotiable Instruments Act refers about the default in case of dishonour of cheque for insufficient of funds in the account and Section 141 Negotiable Instruments Act deals with the offences by companies, which read as under;”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 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.Notwithstanding anything contained in sub-section (1), where any offfence 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 attributable to, any neglect on the part of, any director, manager, secretary or other officer 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.”9. It is very clear from the above provisions that what is required is that the person who is sought to be vicariously liable for a criminal offence under Section 141 of the Act 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 at the time of the commission of the offence will be liable for criminal action, the liability arises from being in-charge of and responsible for the conduct of the business of the company and the applicant in the present case who is not only the partner but he has signed and issued the cheques on behalf of the company, therefore, the proceedings against the firm as well as the employee responsible for managing the affairs of the firm is very well maintainable. The various cases have been cited by the learned counsel for the applicant that the prosecution against the applicant is not sustainable. The reference of which are being given below;(i) 2007 (14) SCC page 753 Sarav Investment and Financial Consultancy Private Limited and another Vs. Llyods Register of Shipping Indian Office Staff Provident Fund and another,(ii) 2006 (6) SCC page 39, M.S. Narayana Menon @ Mani Vs. State of Kerala and another;(iii) 2005 (8) SCC page 89, S.M.S. Pharmaceuticals Limited Vs. Neeta Bhalla and another;(iv) 2007 (4) SCC page 70, S.M.S. Pharmaceuticals Limited Vs. Neeta Bhalla and another;(v) 2010 (3) SCC page 330, National Small Industries Corporation Limited Vs. Harmeet Sngh Paintal and another;(vi) 2010 (5) SCC page 663, Damodar S. Prabhu Vs. Sayed Baba Lal(vii) 2011 (4) SCC page 593 para 12, Kaushalya Devi Massand Vs. Roopkishore Khore.10. The trial court will decide the matter after recording the evidence of the complainant as well as of the accused/applicant and also on the basis of the appreciation of the evidence as per law. If the allegations made in the complaint only is taken at its face value and accepted in entirety I am of the view that the applicant has rightly been summoned by the trial court. It is well settled that while exercising jurisdiction under Section 482 Cr.P.C. the High Court would not ordinarily embark upon the enquiry as to whether the offence in question made out or not appreciation of accusation would not be assessed as this is the function of the trial court. It is well settled that while exercising jurisdiction under Section 482 Cr.P.C. the High Court would not ordinarily embark upon the enquiry as to whether the offence in question made out or not appreciation of accusation would not be assessed as this is the function of the trial court. The trial court will decide the case after recording the evidence adduced before it, therefore, at this stage it cannot be said that there is any miscarriage of justice or abuse of the process of the court, therefore, without expressing any opinion on the merits of the case this application is hereby dismissed.__________