Judgment S.R. Brahmbhatt, J.—The petitioners named as accused in Criminal Case No. 1755 of 1999 in the Court of Metropolitan Magistrate Court No. 2, Ahmedabad, approached this Court by way of this petition under Article 226 and 227 of the Constitution of India for protection of their fundamental rights in Part-III of the Constitution of India and praying that the said Criminal Case be quashed. 2. The facts in brief leading to filing of this petition deserves to be set out as under. 3. The Respondent No. 2, complainant has filed complaint against the present petitioners as well as two others namely the Company and Chairman and Managing Director of the Company, in which the present petitioners were working at the relevant time as Directors invoking provisions of Section 138 of the Negotiable Instruments Act, 1881 (for short “the Act”) as the cheque bearing No. 329213 dated 23.07.1999 for Rs. 2,96,58,880/- issued by the accused in discharge of the liabilities to the complainant was returned for the reasons stated in the memo and despite there being statutory notice issued in time, the accused did not care to make the payment against the cheque and thus committed offence which warranted filing of the complaint in question. 4. The submission of learned Advocate for the petitioners is to the effect that the present petitioners were Directors of the Company for a very short period and therefore, they are not liable to be proceeded against for the return of the cheque without payment. The petitioners, as submitted by learned Advocate for the petitioners, came to be inducted as Directors with effect from 05.02.1999 and they resigned with effect from 07.09.1999. The cheque of course came to be issued during their tenure as Directors but that in itself should not be held to be sufficient for making them vicariously liable for non payment of the cheque amount so as to subject them to rigors of Criminal prosecution under provision of Section 138 read with Section 141 of the Act. The learned Advocate for the petitioners contended that in fact the liability which is sought to be attributed to them by the complainant is not liable to be attached to them as the complainant has not made any requisite averments in the memo of the complaint so as to include the present petitioners in the sweep of Section 141 of the Act. The complainant Company is shown to have been mainly carrying on business of financing and other ancillary and incidental business and it had filed a complaint being Criminal Case No. 1929 of 1999 against the accused persons indicated in Paragraph 3.1 of the petition. The liability to be discharged was discussed therein. The facts of another complaint earlier in point of time is suppressed and therefore, the subsequent complaint wherein the present petitioners have been shown as accused, is required to be quashed as being abuse of process of law. The learned Advocate for the petitioners, therefore, submitted that the complaint is required to be quashed as even otherwise also for a small stint for which the present petitioners were working as Directors could not have been sufficient to include the present petitioners rendering them vicariously liable for non payment on the part of the main Company. The learned Advocate for the petitioners, therefore, submitted that the present petition be allowed and the complaint in question be quashed. 5. The learned Advocate for the Respondent No. 2 contended that the petitioners have admitted that on the date when the cheque came to be issued, they were acting as Directors of the Company and the complaint contains averments with regard to the role played by the accused while issuing the cheque and subsequent to the notice received by them. The averments made in the complaint are sufficient to put into motion the criminal machinery and the complaint, therefore, need not be quashed. 6. Learned Advocate appearing for the Respondent No. 2 further submitted that the provision of Section 138 read with Section 141 of the Act clearly indicate that the Directors who are said to be responsible to the Company for the conduct of the business of the Company as well as Company shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished in criminal case. Thus, the present petitioners who by their own admission were working as Directors have attributed to the offence and as narrated in the complaint they cannot be permitted to submit that they are not liable to be proceeded against and the complaint is required to be quashed. Thus, the present petitioners who by their own admission were working as Directors have attributed to the offence and as narrated in the complaint they cannot be permitted to submit that they are not liable to be proceeded against and the complaint is required to be quashed. The learned Advocate for the Respondent No. 2 further submitted that no submission is canvassed in respect of the liability as such and the entire matter being subject matter of evidence, the provisions of Articles 226 and 227 of the Constitution of India cannot be invoked for seeking quashment of the complaint, which is disclosing sufficient ingredients so as to prosecute the present petitioners against provisions of Section 138 read with Section 141 of the Act. 7. The learned Advocate for the Respondent No. 2 further submitted that the present Petitioner No. 2 had in fact preferred a Special Criminal Application being Special Criminal Application No. 697 of 2006, seeking similar reliefs and the present Respondent No. 2 has, therefore, made detailed averments in reply in Paragraph No. 2 and 3 and annexed the order passed by this Court on 19.09.2007, which is clear enough to indicate that the said petition was withdrawn and therefore, without disclosing these facts in the memo of the present petition, the said petition could not have been maintained. It was duty cast upon the petitioners when they moved this Court under Article 226 and 227 of the Constitution of India to disclose all the relevant facts and the facts as narrated in the reply in page 64 of the compilation, would go to show that the petitioners have incurred disqualification for maintenance of petition as they have not come out with the clean hand so as to invoke extraordinary jurisdiction of this Court under Articles 226 and 227 of the Constitution of India. The learned Advocate for the Respondent No. 2 further submitted that the Respondent No. 2 had a cause for filing complaint during the tenure of the present petitioners as they did not even bother to reply to the notice received by them calling upon them to honour the cheque in question or else they were to face rigors of the Criminal complaint. 8. The Court has heard learned advocates and perused. 8. The Court has heard learned advocates and perused. The facts remain to be noted in this complaint is that the complainant has made averments in the complaint itself which would go to show that the complainant has made specific and clear averments that the cheque in question came to be issued by the accused when the present petitioners were in-charge and responsible for day-to-day business of the Company and responsibility of the Company. Sufficient averments are made in Paragraph No. 3 and 4 of the complaint, which in my view, are sufficient averments so as to invoke provisions of Section 138 read with Section 141 of the Act. The present is not the case where the Directors are sought to be included only on account of their position, as such without there being appropriate averments in respect of their participation. On the contrary, in the instant case, as could be seen from the memo of the complaint which is produced on record, the complainant has made sufficient averments in respect of involvement of the present petitioners in issuance of the cheque and their attitude in not responding to the notice go to show that the complaint cannot be quashed on the grounds mentioned in the memo of the petition. The averments made in the complaint are subject matter of evidence and any elaborate discussion in respect of those averments in the complaint under the provision of Articles 226 and 227 of the Constitution of India, would not be appropriate and hence the Court need not elaborately dwell upon the said averments. But suffice it to say here that those averments in my view, are sufficient to maintain the complaint against the present petitioners, especially when it is not disputed by the petitioners that they were acting as Directors since 05.02.1999 to 07.09.1999 i.e. the period in which the incident of issuance of cheque and its bouncing despite notice occurred, the petitioners have not pleaded any other ground except the ground that they were at the relevant time merely acting as a Director and the period of their Directorship was very very small. This contention, in my view, would not support the case of the petitioners for quashment as the tenure of the petitioners as Directors would not be very material when there is a sufficient averment made in the complaint itself that the petitioners when they were acting as a Director or functioning as a Director were responsible for the Company’s day-to-day affairs and business and when there is further averment that the cheque was issued collectively by all the accused, then this being subject matter of evidence, the smallness of tenure as a Director cannot be permitted to weigh in favour of the petitioners so as to quash the complaint in question. 9. The fact remains to be noted that the entire complaint and the averments and filing of the complaint so far as the present petitioners are concerned, cannot be quashed only on the ground that the earlier complaint which was filed had been filed against other accused. The fact remains to be noted that the present petitioners were acting as a Directors when the cause of action has arisen and when the complaint is filed in time stipulated in the Negotiable Instruments Act and when the limitation is not even raised as an issue, this Court would not certainly be persuaded to quash the same. 10. It would not be out of place to mention here that the petition otherwise is also not required to be entertained, as the Court is of the view that the Petitioner No. 2 though had filed petition had failed in disclosing this fact before this Court and thus he along with Petitioner No. 1 is disqualified from maintaining this petition, as it can well be said that the petitioners did not approach the Court with clean hands. Hence, in my view, the petition deserves to be dismissed and is accordingly dismissed. As the matter is very old, it would be open to the complainant to make appropriate application in the concerned Court for expeditious hearing. Rule is discharged. Ad-interim relief stands vacated. No order as to costs. P P P P P