JUDGMENT P.N. Deshmukh, J. 1. Rule. The rule is made returnable forthwith. Heard finally with consent of learned Counsel for the parties. Both these criminal applications are filed by invoking provisions of Section 482 of Code of Criminal Procedure praying to quash and set aside Criminal Complaint No. 2500/2012 filed by respondent No. 1 pending in the Court of Chief Judicial Magistrate, Amravati and summons issued by the said Court in pursuance of the said complaint dated 7/8/2012 by holding that filing of such complaint and its continuance would be gross abuse of process of law and Court. Thus, both the criminal applications can be conveniently disposed of by common judgment. 2. The facts, which are necessary to know the controversy involved, can be briefly stated as under: "The applicant Nos. 1 and 2 in Criminal Application No. 767/2012 and applicant Nos. 1 to 4 in Criminal Application No. 73/2013 are the original accused in the criminal complaint as stated above. It is the case of the respondent No. 1/complainant that it is a Private Limited Company established under the provisions of the Companies Act and deals in the business of production and selling spices under the name and style as "M/s. Gharkul Industries Pvt. Ltd." while applicant No. 1 Ameya Paper Mills Pvt. Ltd. deals in the business of paper production and all other applicants are its Directors. The respondent No. 1 and applicants being well acquainted with each other and applicants being in need of financial assistance for their business approached respondent No. 1 with a request to provide them financial assistance. The respondent No. 1 considering the relations and need of the applicants provided financial assistance and on negotiations and mutual agreement executed Memorandum of Understanding with the applicants, which was signed by applicant No. 2 (in Criminal Application No. 73/2013) with consent of all the applicants in the presence of two attesting witnesses. It is also the case of respondent No. 1 that all the applicants had agreed that the amount so received from respondent No. 1 would be returned within a span of one or two years. It is also the case of respondent No. 1 that all the applicants had agreed that the amount so received from respondent No. 1 would be returned within a span of one or two years. The respondent No. 1 accordingly made following payments to the applicants as and when demanded: Date Cheque No. Bank Amount (Rs.) 23/11/07 417895 HDFC Bank 20,00,000/- 30/11/07 417896 HDFC Bank 16,00,000/- 18/01/08 417909 HDFC Bank 6,00,000/- 21/01/08 417915 HDFC Bank 5,00,000/- 22/01/08 417916 HDFC Bank 10,00,000/- 23/01/08 417917 HDFC Bank 5,39,831/- 30/01/08 417919 HDFC Bank 7,00,000/- 01/02/08 461840 S.B.I. 3,00,000/- 15/02/08 461840 S.B.I. 5,00,000/- 26/02/08 507485 HDFC Bank 3,00,000/- 01/03/08 507487 HDFC Bank 4,00,000/- 11/03/08 461844 S.B.I. 3,50,000/- 18/03/08 507483 HDFC Bank 80,000/- 24/03/08 507497 HDFC Bank 3,04,000/- 04/04/08 507509 HDFC Bank 3,00,000/- 06/04/08 507500 HDFC Bank 2,70,000/- 28/04/08 507506 HDFC Bank 24,000/- 01/05/08 507507 HDFC Bank 1,27,000/- 06/05/08 507514 HDFC Bank 2,25,000/- 30/05/08 461861 S.B.I. 2,50,000/- 04/06/08 507519 HDFC Bank 4,00,000/- 27/06/08 507426 HDFC Bank 2,50,000/- 12/03/09 333407 S.B.I. 10,00,000/- 12/03/09 333408 S.B.I. 10,00,000/- 12/03/09 333409 S.B.I. 10,00,000/- 12/03/09 333410 S.B.I. 10,00,000/- Accordingly, an amount of Rs. 1,50,19,831/- was received by the applicants. 3. It is the further case of respondent No. 1 that on 18/8/2010 a letter was issued to the applicants demanding balance-sheet of the Company, which was supplied and accordingly accounts were confirmed by the applicants and on 21/6/2012, the applicants issued a letter admitting the outstanding balance of respondent No. 1 as on 31/3/2012 to the extent of Rs. 1,49,94,831/-. According to respondent No. 1, the applicants being Directors of their Company are responsible for conduct of its business and since they are involved in the business of their Company are responsible for the affairs of the Company. It is the further case of respondent No. I that applicant Company issued a cheque dated 2/6/2012 in favour of respondent No. 1 towards part payment of the above said amount valued for Rs. 10,00,000/- drawn on State Bank of India, Finance Branch at Nagpur, which was deposited by respondent No. 1 in UCO Bank, Amravati for encashment. However, same was dishonoured due to "funds insufficient". The intimation of dishonour of cheque was received by respondent No. 1 on 4/6/2012. 10,00,000/- drawn on State Bank of India, Finance Branch at Nagpur, which was deposited by respondent No. 1 in UCO Bank, Amravati for encashment. However, same was dishonoured due to "funds insufficient". The intimation of dishonour of cheque was received by respondent No. 1 on 4/6/2012. After dishonour of cheque, notice was issued to the applicants demanding the said amount of cheque, which was refused to be accepted by the applicants in spite of intimation given by the Postal Authorities and thus, the notice was returned with remark "not claimed". 4. In the background of above facts, respondent No. 1 filed complaint against the applicants under Section 138 of the Negotiable Instruments Act as according to the respondent No. 1, the applicants are equally responsible for the offence committed by them by issuing cheque to discharge their legal liability towards respondent No. 1. 5. The learned trial Court issued summons in the name of all the applicants for the offence punishable under Section 138 of the Negotiable Instruments Act against which the applicants have preferred the present criminal applications praying for quashing and setting aside the criminal complaint filed by respondent No. 1 as well as summons issued by the learned trial Court in pursuance of the complaint. 6. It is the case of the applicants that in response to the summons issued, the applicants appeared before the learned Chief Judicial Magistrate where they were served with copies of the complaint and on going through its contents, they were convinced that they could not be said to have committed any offence, even if the averments made in the complaint are accepted as it is, as according to them, there is no specific averment that they have committed the offence and are responsible for conduct of business of the Company, which is an essential requirement and without such averment, merely being Directors of the Company, they are not liable and cannot be made accused in the absence of any specific allegation in the complaint. It is the further case of the applicants that according to the allegations made in the complaint, a Memorandum of Understanding was executed between parties, through applicant No. 2, who is Authorized Director though there is no date mentioned on the said Memorandum of Understanding. It is the further case of the applicants that according to the allegations made in the complaint, a Memorandum of Understanding was executed between parties, through applicant No. 2, who is Authorized Director though there is no date mentioned on the said Memorandum of Understanding. According to the applicants, even otherwise, respondent No. 1 has invested in the applicant No. 1 Company the amount of rupees one crore and the said amount invested is a contribution for capital funding for the Unit owned by the applicant No. 1, against which respondent No. 1 will acquire 25% of its ownership. The respondent No. 1 thus being co-owner of the applicant No. 1 Company is alleging against its co-owner to be an accused. It is also the case of the applicants that as the respondent No. 1 has invested the said amount in the applicant No. 1 Company, there is no question of repayment of the said amount or refund thereof as it is a permanent investment and in recognition of the said investment, share certificates are also issued in the name of respondent No. 1. 7. It is the further case of the applicants that no notice relating to dishonour of cheque dated 2/6/2012 has been received by them as none of the applicants reside at the address on which notice is alleged to be sent and as there is no mandatory notice given by the respondent No. 1, which is a pre-condition for alleging commission of offence under Negotiable Instruments Act, there is no alleged demand and when the applicants are not under legal liability to pay any amount, there is no question of applicants committing any offence mentioned in the complaint. It is thus concluded by contending that as there are no averments made in the complaint that on the relevant date of issuance of cheque, the applicants were Managing Directors and that they were responsible for day to day conduct of business of the Company, filing of complaint by respondent No. 1 is nothing, but gross abuse of process of law and Court and thus, complaint cannot be allowed to progress further and as such, have prayed that both the criminal applications may be allowed by quashing Criminal Complaint No. 2500/2012. In support of their contentions, the learned Counsel for the applicants has relied upon the judgment of the Apex Court in S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla and another { (2005) 8 SCC 89 } : [2005(5) ALL MR 1118 (S.C.)]. 8. The respondent No. 1 has resisted both these criminal applications contending that the applicants have made misleading and mischievous statements that in view of Memorandum of Understanding, permanent investment is made by respondent No. 1 with applicant No. 1 Company and in lieu thereof, respondent No. 1 has become co-owner of applicant No. 1 Company for which share certificates worth Rs. 1,49,94,800/- are issued. According to respondent No. 1, there is a specific averment made in the complaint that the applicants are responsible for conduct of business of the applicant No. 1 Company and Memorandum of Understanding was executed and signed by applicant No. 2 Dilip Shrikrishna Andhare with consent of all other applicants in the presence of two attesting witnesses. According to respondent No. 1, there is a specific averment made in the complaint that all the Directors of the applicant No. 1 Company are responsible for conduct of business and they are involved in the business of applicant No. 1 Company and are responsible for all the affairs of the applicant No. 1 Company. 9. With reference to issuance of mandatory notice, it is the case of respondent No. 1 that such notice was issued to the applicants on the address of the applicant No. 1 Company as well as on residential address of all the Directors by registered post acknowledgment due. However, same was returned back to respondent No. 1 with postal remark "not claimed". The respondent No. 1 has resisted the allegations of the applicants by relying upon the law laid down by the Apex Court in Rallis India Limited v. Poduru Vidya Bhushan and others { (2011) 13 SCC 88 } : [2011 ALL MR (Cri) 1645 (S.C.)] and N. Rangachari v. Bharat Sanchar Nigam Ltd. { (2007) 5 SCC 108 } : [2007 ALL MR (Cri) 1437 (S.C.)]. 10. 10. In the background of the above stated facts as well as legal submissions, it is to be noted that in the case of S.M.S. Pharmaceuticals Ltd., [2005 (5) ALL MR 1118 (S.C.)} (cited supra), the issue arose from a reference made for determining the following questions by the larger Bench: "(a) Whether for purposes of Section 141 of the Negotiable Instruments Act, 1881, it is sufficient if the substance of the allegation read as a whole fulfil the requirements of the said Section and it is not necessary to specifically state in the complaint that the person accused was in charge of, or responsible for, the conduct of the business of the company? (b) Whether a director of a company would be deemed to be in charge of, and responsible to, the company for conduct of the business of the company and, therefore, deemed to be guilty of the offence unless he proves to the contrary? (c) Even if it is held that specific averments are necessary, whether in the absence of such averments the signatory of the cheque and or the managing Directors or joint Managing Director, who admittedly would be in charge of the company and responsible to the Company for conduct of its business could be proceeded against." The questions so posed, as above, were replied as under: "(a) It is necessary to specifically aver in a complaint under Section 141 that at the time the offence was committed, the person accused was in charge of, and responsible for the conduct of business of the company. This averment is an essential requirement of Section 141 and has to be made in a complaint. Without this averment being made in a complaint, the requirements of Section 141 cannot be said to be satisfied. (b) The answer to the question posed in sub-para (b) has to be in the negative. Merely being a director of a company is not sufficient to make the person liable under Section 141 of the Act. A director in a company cannot be deemed to be in charge of and responsible to the company for the conduct of its business. The requirement of Section 141 is that 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. A director in a company cannot be deemed to be in charge of and responsible to the company for the conduct of its business. The requirement of Section 141 is that 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. (c) The answer to Question (c) has to be in the affirmative. The question notes that the managing director or joint managing Director would be admittedly in charge of the company and responsible to the company for the conduct of its business. When that is so, holders of such positions in a company become liable under Section 141 of the Act. By virtue of the office they hold as managing director or joint managing director, these persons are in charge of and responsible for the conduct of business of the company. Therefore, they get covered under Section 141. So far as the signatory of a cheque which is dishonoured is concerned, he is clearly responsible for the incriminating act and will be covered under sub-section (2) of Section 141." 11. Admittedly, all applicants are Directors of applicant No. 1 Company. On perusal of the complaint, there appears a specific averment made therein when it is alleged that respondent No. 1 by considering the need of the applicants for financial assistance and their relations, provided such financial assistance to the applicants by executing Memorandum of Understanding, which was signed by applicant No. 2 Dilip S. Andhare. It is specifically contended that applicant No. 2 signed the said document with consent of all the remaining applicants in the presence of two attesting witnesses. It is the case of respondent No. 1 as revealed from the complaint that all the applicants agreed that the amount provided by respondent No. 1 would be refunded within one or two years. The contents of the complaint further reveal that respondent No. 1 had demanded balance-sheet of the applicant No. 1 Company, which was provided and the applicants also confirmed the balance in their Accounts by issuing letter dated 21/6/2012. It is pertinent to note that the cheque involved in the criminal case initiated by the respondent No. 1 against the applicants is dated 2/6/2012. It is pertinent to note that the cheque involved in the criminal case initiated by the respondent No. 1 against the applicants is dated 2/6/2012. It thus appears that even after issuing the said cheque, the applicants have confirmed the Accounts and the balance in their Accounts as on 31/3/2012 to the extent of Rs. 1,49,94,831/-. 12. It is further found averred in the complaint that all the Directors of the applicant Company are responsible for its business and all the applicants are involved in the business of the Company and are responsible for all the affairs of the Company. After contending about the fact of issuance of cheque dated 2/6/2012 by the applicants to respondent No. 1 and dishonour of cheque for want of sufficient funds, it is further averred that on receipt of intimation regarding dishonour of cheque on 4/6/2012, respondent No. 1 issued legal notice to the applicants on applicant No. 1 Company's address as well as on their residential address by registered post acknowledgment due on 26/6/2012 demanding amount of Rs. 10 lakhs within fifteen days, which is alleged to have been refused by the applicants as per endorsement made by the Postal Department. 13. In the light of the above averments in the complaint and documents filed on record, it is revealed that the legal notice was issued by respondent No. 1 to all the applicants on their address and in spite of intimation given to the applicants by the Postal Department as they were not claiming the notice, the notice was returned to respondent No. 1 with endorsement "not claimed". It is further found averred in the complaint that all the applicants are equally responsible for the offence committed by them and they have issued the said cheque to discharge their legal liability towards respondent No. 1. 14. In the background of above contents in the complaint, the law laid down by the Apex Court in the case of Rallis India Limited, [2011 ALL MR (Cri) 1645 (S.C.)l (cited supra) can be directly made applicable. 14. In the background of above contents in the complaint, the law laid down by the Apex Court in the case of Rallis India Limited, [2011 ALL MR (Cri) 1645 (S.C.)l (cited supra) can be directly made applicable. In the said case, a specific plea was raised in the complaint, which is mentioned in para (2) of the judgment, which reads thus: "That Accused 1 is a partnership firm and Accused 2 to 7 are partners thereof and Accused 3 is signatory of the impugned cheques and all partners are looking after day-to-day affairs of the accused firm and thus, the liability as raised by them is joint and several." On perusal of specific averments as above, it came to be observed by the Apex Court that the specific averment of vicarious criminal liability as mandated by the three-Judge Bench of this Court in S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla, is contained in them in the form mentioned in para 2 hereinabove. The Apex Court in para (10) of its judgment has observed thus: "10. Thus, in the light of the aforesaid averments as found by us in the criminal complaint, we are of the considered opinion that sufficient averments have been made against the respondents that they were the partners of the firm at the relevant point of time and were looking after the day-to-day affairs of the partnership firm. This averment has been specifically mentioned by the appellant in the complaint even though denied by the respondents but the burden of proof that at the relevant point of time, they were not the partners, lies specifically on them. This onus is required to be discharged by them by leading evidence and unless it is so proved, in accordance with law, in our opinion, they cannot be discharged of their liability......" 15. This onus is required to be discharged by them by leading evidence and unless it is so proved, in accordance with law, in our opinion, they cannot be discharged of their liability......" 15. The case of N. Rangachari, [2007 ALL MR (Cri) 1437 (S.C.)] (cited supra) involves commission of offence by the Company under Section 138 of the Negotiable Instruments Act and it is held by the Apex Court as under: "Under Section 141 of the NI Act, 1881, a prosecution could be launched not only against the company on behalf of which the cheque issued has been dishonoured, but it could also be initiated against every person who at the time the offence was committed, was in charge of and was responsible for the conduct of the business of the company. In fact, Section 141 deems such persons to be guilty of such offence, liable to be proceeded against and punished for the offence, leaving it to the person concerned, to prove that the offence was committed by the company without his knowledge or that he has exercised due diligence to prevent the commission of the offence. A company, though a legal entity, cannot act by itself, but can only act through its Directors. Normally, the Board of Directors act for and on behalf of the company. This is clear from Section 291 of the Companies Act. Therefore, a person in the commercial world having a transaction with a company is entitled to presume that the Directors of the company are in charge of the affairs of the company. If any restrictions on their powers are placed by the memorandum or articles of the company, it is for the Directors to establish it at the trial. It is in that context that Section 141 of the NI Act provides that when the offender is a company, every person, who at the time when the offence was committed was in charge of and was responsible to the company for the conduct of the business of the company, shall also be deemed to be guilty of the offence along with the company." 16. Considering the facts involved in both these criminal applications together with the legal position as above, I do not find substance in the criminal applications as admittedly the applicants are Directors of applicant No. 1 Company and proviso to Section 141 of the Negotiable Instruments Act can come into play in favour of applicants to save themselves from the punishment, if it is proved in the trial that the offence was committed without their knowledge. The applicants, who are Directors of applicant No. 1 Company, can also save themselves from punishment if they prove that they have exercised all due diligence to prevent the commission of such offence and also cheque involved in the prosecution is issued by the applicant No. 2 without their consent. The presumption under Section 139 of the Negotiable Instruments Act is that respondent No. 1 received the said cheque towards discharge of legal liability or debt. The burden to rebut the said presumption is on the applicant No. 1 Company and it can only be rebutted during trial. Accordingly, no interference is called for. The criminal applications are dismissed. The rule is discharged. Interim relief stands vacated. No order as to costs. Petition dismissed