ORDER : Heard Mr. Jyotirmoy Roy, learned counsel for the petitioner. Also heard Mr. Jayanta Deka, learned counsel for the opposite party Nos. 1 and 2, Mr. Suraj Vhan Prasad, learned counsel for the opposite party Nos. 3, 4 and 5 and Mr. B.B. Gogoi, learned Additional Public Prosecutor, Assam appearing for the opposite party No. 6. 2. On 24.08.2015, the opposite party No. 1 represented by the opposite party No. 2 filed a complaint before the Court of learned Chief Judicial Magistrate, Kamrup (M) Guwahati, being N.I. Case No. 1954C/2015, against the opposite party Nos. 3, 4, 5 and the present petitioner as accused persons alleging that they committed offences under Section 138 of the Negotiable Instrument Act, 1881, as amended read with Section 420 of the IPC as the five nos. of cheques bearing Nos. 000039, 000040, 000041, 000042 and 000043 all dated 31.03.2015 totaling an amount 97,00,000/- drawn on Bank of India, Guwahati Branch in favour of the complainant/the opposite party No.1 were dishonored on 30.06.2015 due to insufficiency of fund, which were issued by the opposite party No. 4, the Managing Director of the opposite party No. 3 company, who obtained loan from the opposite party No. 1. Though the complainant/opposite party No.1 on 07.07.2015 issued demand notice under Section 138 and 142 of the N. I. Act to the opposite party No.4/accused No. 1 informing him regarding dishonoring of those cheques that were issued by him amounting to Rs. 97,00,000/- and therefore, demanded said amount of Rs 97,00,000/- within fifteen days from the date of receipt of said notice. Though notices were duly served on 11.07.2015 to the opposite parties No. 4 and 5 and the petitioner on 14.07.2015, the complainant was served with a reply dated 27.07.2015 by the counsel of the opposite party No. 3 that those cheques noted above were issued as security cheques against excess interest debited by the complainant against the account of opposite party No. 4, which was accordingly protested by the opposite party Nos. 4 and 5, as regarding those cheques, the matter was discussed in the office of the complainant and that the complainant never issued any statement of interest nor intimated the opposite parties No. 4, 5 and the petitioner, the accused person of the case, regarding presentation of those five cheques before presenting them to the bank. 3. 4 and 5, as regarding those cheques, the matter was discussed in the office of the complainant and that the complainant never issued any statement of interest nor intimated the opposite parties No. 4, 5 and the petitioner, the accused person of the case, regarding presentation of those five cheques before presenting them to the bank. 3. Thereafter, the complainant on 24.08.2015 filed the above noted complainant, being N.I. Case No. 1954C/2015 and on receipt of it, learned CJM by order dated 24.08.2015 transferred the same to the Court of learned Judicial Magistrate, First Class, Kamrup (Metro), Guwahati for its disposal. On 11.09.2015 the complainant filed its evidence on affidavit and the learned JMFC after hearing the complainant and going through said evidence on affidavit, found that the complainant is a company and all the three accused, the opposite party Nos. 4, 5 and the petitioner being its Directors are responsible for day to day affairs of the company and accordingly, said Magistrate came to a conclusion that the accused persons, the present opposite party Nos. 4, 5 and the petitioner are involved with the offence as alleged by the complainant and by order dated 11.09.2015 passed in said N.I. Case No. 1954C/2015 took cognizance of the offences and issued summons to them for their appearance in the matter. As the petitioner did not receive summon, by order dated 30.10.2015 learned JMFC in said N.I. Case No. 1954C/2015 issued bailable warrant of arrest against him for his appearance in said matter and all the accused persons of the case appeared before learned JMFC on 02.02.2016, and the charges were read over to them, to which the accused persons pleaded not guilty and claimed to be tried. 4. However, the petitioner/the accused No. 4 filed an application under Section 205 Cr.P.C. before said Trial Magistrate to dispense him from his personal attendance in the said complaint case and to permit his authorised pleader to appear in the proceeding and by order dated 17.06.2016 said Trial Court allowed the petitioner to be represented by his counsel in the said N.I. Case No. 1954C/2015 until further order. 5. 5. The contention of the petitioner herein is that the petitioner while serving as one of the Director in M/s. Surface Tech (India) Pvt. Ltd., the accused No. 1/ opposite party No. 3, the opposite party No. 4 on behalf of said company on 02.01.2012 applied for financial assistance amounting to Rs. 500 lacs under ‘Raw Material Assistance Scheme’ from the complainant company and that an amount of Rs. 300 lacs were sanctioned by the complainant/opposite party No. 1 on 06.01.2012, for which an agreement on 07.01.2012 was entered into between the complainant/opposite party No. 1 and the accused No. 1 company/opposite party No. 3, represented by accused No.2/the opposite party No. 4, with the terms and condition mentioned therein and in the said agreement the opposite party Nos. 4 and 5 were the 1st and the 2nd surety whereas the petitioner was the 3rd surety, on behalf of the borrower company, the opposite party No. 3. In August 2013, the petitioner resigned from the post as Independent Director of the borrower Company, the opposite party No. 3, which was duly informed to the opposite party Nos. 4 and 5 and the necessary formalities regarding the same with the Office of the Registrar of the Companies, Government of India were completed on 10.05.2014 and the requisite Form ‘Dir-12’ was issued as required under the provisions of the Companies Act and the Rules framed under it confirming the resignation of the petitioner as Independent Director from the Board of Directors from the Accused No.1 Company w.e.f. 10.05.2014 and since then the petitioner is not connected with the opposite party No. 3 Company. In the meanwhile the opposite party No. 4, on behalf of his company, the opposite party No. 3, on 23.05.2013 applied for ‘Raw Material Assistance Scheme’ from the Complainant opposite party No. 1 for another amount of Rs. 200 lacs and by letter dated 02.07.2013 the complainant company intimated the opposite party No. 3 company regarding sanctioning of said Rs. 200 lacs with overall credit of Rs. 500 lacs, enhancing from Rs. 300 lacs and for that purpose an agreement was executed on 02.07.2013 between the Complainant/opposite party No. 1 and the and the opposite party No. 3/accused No. 1 company, represented by the opposite party No. 4/accused No. 2, with the terms and condition mentioned therein and in the said agreement the opposite party Nos. 500 lacs, enhancing from Rs. 300 lacs and for that purpose an agreement was executed on 02.07.2013 between the Complainant/opposite party No. 1 and the and the opposite party No. 3/accused No. 1 company, represented by the opposite party No. 4/accused No. 2, with the terms and condition mentioned therein and in the said agreement the opposite party Nos. 4 and 5 were the 1st and the 2nd surety on behalf of the borrower company, the opposite party No. 3; but the petitioner was not a signatory to the said agreement. The petitioner also submits that as per the Complainant in its N.I. Case No. 1954C/2015, the cause of action arose on 31.03.2015, followed by 29.06.2015, 30.06.2015, 07.07.2015 07.08.2015, 14.07.2015 and 30 07.2015 and as the petitioner was not connected with the opposite party No. 3 Company w.e.f. 10.05.2014 and therefore, it is submitted that he is no way involved with the incident and the commission of the offence as evident from the N.I. Case No. 1954C/2015 itself, the complainant/opposite party No.1 filed the same only to harass him. It is also submitted by the petitioner that the complainant/opposite party No. 1 did not make any specific statement in its complaint as to how the petitioner is involved in the commission of the alleged offence. Hence this criminal petition by the petitioner/accused No. 4, for quashing the proceeding of said N.I. Case No. 1954C/2015 as well as the said complaint against him. 6. The petitioner has placed reliance on the judgment of the Hon’ble Supreme Court in the case of National Small Industries Corporation Limited Vs. Harmit Singh Paintal and Another, reported in (2010) 3 SCC 330 . 7. Appearing on behalf of the complainant/opposite party Nos. 1 and 2, Mr. Jayanta Deka, learned counsel submits that the petitioner is the 3rd surety on behalf of the opposite party No. 3 Company and the petitioner being one of the Director of the Company as on 06.01.2012 when the complainant sanctioned an amount of Rs. 7. Appearing on behalf of the complainant/opposite party Nos. 1 and 2, Mr. Jayanta Deka, learned counsel submits that the petitioner is the 3rd surety on behalf of the opposite party No. 3 Company and the petitioner being one of the Director of the Company as on 06.01.2012 when the complainant sanctioned an amount of Rs. 300 to the opposite party No. 3 Company towards ‘Raw Material Assistance Scheme’ and he being one of the signatory of the agreement dated 07.01.2012 as 3rd surety that was executed between the complainant and the opposite party No. 3 Company and that the petitioner being one of the Director of the said Company, he is responsible for the offences under Section 138 of the N.I. Act read with Section 420 of the IPC. Mr. Deka further submitted that since such offences have been committed with the full knowledge of the petitioner, therefore, he is an accused and responsible for those offences. 8. Mr. Deka in support of his argument for the complainant/opposite party Nos. 1 and 2, placed reliance of the Apex Court in the case of Rallies India Limited Vs. Poduru Vidya Bhushan and others, reported in (2011) 13 SCC 88 , Central Bank of India Vs. C.L. Vimla and others, reported in 2015 17 SCC 337 and Krishna Texport and Capital Market Limited Vs. Ilaa Agarwal and others, reported in (2015) 8 SCC 28 . Relying on these judgment Mr. Deka submits that the petitioner is an accused in N.I. Case No. 1954C/2015 and that specific averment has been made against him in the complaint pertaining to said Complainant Case that he is the 3rd surety of the agreement dated 07.01.2012 between the complainant Corporation and the accused borrower Company wherein he use to serve as Director and that he had full knowledge regarding the commission of the offence under section 138 of the N.I. Act by the accused opposite party No. 3 Company and if at the relevant point of time he was neither the Director or nor involved with the case, the onus is upon him to lead evidence during the trial for discharging him from the liability and not in a criminal petition under Section 482 CrPC. Mr. Mr. Deka further submits that since the petitioner is the 3rd surety as per the agreement dated 07.01.2012, he cannot escape from his liability on behalf of the accused/opposite party No.1 Company. Mr. Deka also submits that as the petitioner was one of the Director of the Company who was in the charge of the affairs of the Company and responsible for the affairs of the company, as such for the offence committed by the accused/opposite party No. 3 Company, the petitioner being one of its Director and being in charge of that Company for conduct of its business, is also deemed to be guilty and therefore, the criminal petition filed by him against the said N.I. Case No. 1954C/2015 should be dismissed. 9. Considered the arguments advanced by the parties as well as the judgments cited by them. 10. It is seen that the initially the complainant/opposite party No. 1 Corporation, on 06.01.2012 sanctioned an amount Rs 300 lacs to the said Company on its application made on 02.01.2012 under the ‘Raw Material Assistance Scheme’ and for that on 07.01.2012 an agreement between the Complainant Corporation and the opposite party No.3/accused borrower Company was registered wherein the petitioner was the 3rd surety for said opposite party No. 3 Company being one of its Director. Subsequent to that the opposite party No. 3 Company on 23.05.2013 submitted another application for Rs. Subsequent to that the opposite party No. 3 Company on 23.05.2013 submitted another application for Rs. 200 lacs under the ‘Raw Material Assistance Scheme’ and the said amount was sanctioned by the Company on 02.07.2013 with overall credit of Rs 500 lacs and for that a fresh agreement was signed between the complainant Corporation and borrower Company/the accused/opposite party No. 3, wherein the Managing Director of said Company, the opposite party No. 4 and his wife opposite party No. 5 were the 2nd and 1st surety respectively, in which it was specifically provided that the fresh agreement is to operate as a ‘Continuing Security’ for the balance from time to time due to the Corporation (complainant/opposite party No.1) and also for the ultimate balance to become due on the said account of the borrower and that the borrower agrees to reimburse the Corporation on demand or any amount that it pays or may be required to pay or bear by way of levy charges of duties and/or taxes on the said material procured on behalf of the borrower in terms of the said agreement whither before or after the delivery of the said material and that the Corporation possessed the right to recover personally from the proprietor partners/ Directors/Members of the Borrowers, from the 1st surety and the 2nd surety jointly and severally or from their proprieties or from the guarantor bank as the case may be the balance from the time being and the proprietor, partners, Directors or the 1st surety or 2nd surety as the case may be. The Corporation Bank gave a statement that total outstanding amount by the borrower/opposite party No. 3 is Rs. 1,18,02,563/- and the cause of action in the said N.I. Case No. 1954C/2015 arose on 31.03.2015 and on its subsequent dates. The petitioner who is the accused No. 4 in said complaint case have resigned from the Company w.e.f. 14.08.2013 and he on 07.02.2014 sent reminder to the Registrar of Companies to send Form Dir-12 and thereafter it is on 10.05.2014 the Registrar of Companies issued the necessary Form DIR-12 for change of name of Directors of the borrower Company, which clarified that the petitioner resigned as Director of the Borrower Company w.e.f. 10.5.2014. 11. In the case of the National Small Industries Corporation Limited Vs. 11. In the case of the National Small Industries Corporation Limited Vs. Harmit Singh Paintal and Another, reported in (2010) 3 SCC 330 wherein in a their Lordships have held that – “12. ……………….. 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. 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 office in a company. 13. Section 141 is a penal provision creating vicarious liability, and which, as per settled law, must be strictly construed. It is therefore, not sufficient to make a bald cursory statement in a complaint that the Director (arrayed as an accused) is in charge of and responsible to the company for the conduct of the business of the company without anything more as to the role of the Director. But the complaint should spell out as to how and in what manner Respondent No.1 was in-charge of or was responsible to the accused company for the conduct of its business. This is in consonance with strict interpretation of penal statutes, especially, where such statutes create vicarious liability. 14. A company may have a number of Directors and to make any or all the Directors as accused in a complaint merely on the basis of a statement that they are in-charge of and responsible for the conduct of the business of the company without anything more is not a sufficient or adequate fulfilment of the requirements under Section 141. 15. 15. In a catena of decisions, this Court has held that for making Directors liable for the offences committed by the company under Section 141 of the Act, there must be specific averments against the Directors, showing as to how and in what manner the Directors were responsible for the conduct of the business of the company. 38. 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.” 12. In the N.I. Case No. 1954C/2015 it is seen that the complainant opposite party No. 1 is totally silent as to how on the date of occurrence of the offence i.e. on 31.03.2013 and thereafter, the petitioner is involved with the offence as alleged by the said complainant. From the perusal of the complaint in the said N.I. Case No. 1954C/2015, it can be seen that no specific averment has been made by the complainant regarding the role of the petitioner for the offences as alleged as on 31.03.2015 and thereafter except that he was the 3rd surety in the agreement dated 07.01.2012 when he was one of the Director of the borrower/accused No. 1/opposite party No. 3 Company. 13. Moreover, while taking cognizance of the offences as alleged in said N.I. Case No. 1954C/2015 and issuing summons to the petitioner/accused No. 4, the Trial Court did not consider the aspect that the petitioner is residing at a place beyond his territorial jurisdiction. 14. 13. Moreover, while taking cognizance of the offences as alleged in said N.I. Case No. 1954C/2015 and issuing summons to the petitioner/accused No. 4, the Trial Court did not consider the aspect that the petitioner is residing at a place beyond his territorial jurisdiction. 14. After the amendment of CrPC, by the Amendment Act of 2005, it is settled that with regard to private complaint, it is mandatory for the trial magistrate to postpone the issue of process against the accused persons when they are outside its territorial jurisdiction, as it was found necessary in order to protect innocent persons from being harassed by unscrupulous persons and making it obligatory upon the magistrate to enquire into the case himself, or to direct investigation to be made by a police officer, or by such other person as he thinks fit for the purpose of finding out whether or not, there was sufficient ground for proceeding against the accused before issuing summons in such cases. 15. From the complaint pertaining to said N.I. Case No. 1954C/2015 of the complainant/ opposite party No. 1, it can be seen that the accused No. 4, the petitioner herein is residing at a place beyond the territorial jurisdiction of the Trial Magistrate, i.e. learned Judicial Magistrate, First Class, Kamrup (Metro), Guwahati and without making any statutory enquiry, said Magistrate by the impugned order dated 11.09.2015 passed in said Complainant Case No. 1954C/2015 took cognizance of the offence under Section 138 of the N.I. Act 1881 as amended as alleged in the said N.I. Case No. 1954C/2015 and issued summons to the petitioner/accused No. 4 for his appearance in the case. 16. For the reasons above, the Court is of the opinion that the order dated 11.09.2015 passed by the Trial Magistrate, i.e. learned Judicial Magistrate, First Class, Kamrup (Metro), Guwahati in said N.I. Case No. 1954C/2015 taking cognizance of the offence under Section 138 of the N.I. Act 1881 as amended against the petitioner is bad in law as well as the proceeding of said N.I. Case No. 1954C/2015, preferred by the opposite party No. 1/complainant is also bad in law and if proceeding of said N.I. Case No. 1954C/2015, presently pending for disposal before the learned Judicial Magistrate, First Class, Kamrup (Metro), Guwahati is allowed to continue against the present petitioner, it would be an abuse of process of the court. 17. 17. As such, in exercising of the power as provided under Section 482 CrPC to secure the ends of justice, both the order dated 11.09.2015 passed in said N.I. Case No. 1954C/2015 as well as the proceeding of said N.I. Case No. 1954C/2015, pending before the learned Judicial Magistrate, First Class, Kamrup (Metro), Guwahati against the petitioner herein is hereby set aside and quashed. 18. Accordingly, this Criminal Petition stands allowed. 19. The interim order passed earlier on 04.03.2016 stands merged with this order.