JUDGMENT & ORDER : 1. By this petition under Section 482 Cr.P.C., the petitioner has prayed for setting aside and quashing C. R. Case No. 384C/ 2012 under Sections 138/141of the Negotiable Instruments Act, 1881 (for short, N.I. Act) pending in the Court of learned Judicial Magistrate, 1st Class, Kamrup (M) at Guwahati and the order, dated 16.02.2012, passed therein, whereby cognizance has been taken under the aforesaid provisions of the N.I. Act against the petitioner, who is arrayed as an accused. 2. The petitioners case, in a nutshell, is that on 18.10.2011, he owned 35% of the shares of the Shree Krishna Paper Mills Pvt. Ltd., West Bengal, which is a company, registered under the Companies Act, 1956 and thus, became one of the Directors of the Company. The petitioner sold his entire holding of shares of the company to a number of other companies and thereby his interest in the Company ceased and eventually, the petitioner resigned from the post of Director of the Company on 30.06.2012 vide agreement executed on 25.06.2012. Under the agreement, all rights and liabilities of the petitioner, in connection with the Company ceased and vested with the purchasers of the shares. The petitioner, during the short period of holding the post of Director, had no active participation in the affairs of the Company, more particularly, in the matter of financial transactions. However, the respondent No. 2 filed a complaint case, under Sections 138/141 of the N.I. Act in the Court of learned Chief Judicial Magistrate, Kamrup (M) , Guwahati, where he was arrayed as one of the accused persons, alleging that the Cheque No. 115148, dated 09.10.2011, issued in his favour by the said company, amounting to Rs. 6,85,000/-, was dishonoured due to insufficient fund. Thereafter, the respondent No. 2 issued a demand notice as required under Section 138 of the N.I. Act, but despite receipt of the notice, the cheque amount was not paid. The said complaint was registered as C.R. Case No. 384C/2012 and having made over the case for disposal, the learned Judicial Magistrate, 1st Class, Kamrup (M) , Guwahati, took cognizance of the offence vide the impugned order, dated 16.02.2012. Accordingly, the petitioner entered his appearance in the case. The said complaint was registered as C.R. Case No. 384C/2012 and having made over the case for disposal, the learned Judicial Magistrate, 1st Class, Kamrup (M) , Guwahati, took cognizance of the offence vide the impugned order, dated 16.02.2012. Accordingly, the petitioner entered his appearance in the case. The petitioner has contended that in the complaint case, the complainant/ respondent No. 2 made no allegation that the petitioner had any direct involvement or any specific role in the commission of the alleged offence and as such, the petitioner is not liable to be prosecuted for the said offence of the N.I. Act. 3. The complainant/ respondent No. 2 contested the petition contending, inter-alia, that the petitioner was one of the Directors of the Company owning 70% shares and as such, he is personally as well as vicariously liable for all kinds of acts and transactions made by and on behalf of the said Company. It has been further contended that the petitioner was the Director of the Company at the time of, the cheque in question was presented at the State Bank of India, Beltola Branch, Guwahati, on 20.12.2011 for encashment and dishonouring of the same on 21.12.2011, respectively. It has been further contended that despite receipt of the demand notice, the petitioner as Director of the Company did not make arrangement to pay the cheque amount and hence, the petitioner cannot absolve his liability and responsibility to make good of the payment under the Cheque, which occurred during his tenure as Director of the Company. It is, therefore, payed to dismiss the petition. 4. Heard Mr. B. Chakraborty, learned counsel for the petitioner and Ms. S. Jahan, learned Addl. Public Prosecutor, appearing for the State respondent No. 1. Also heard Ms. R. Devi, learned counsel for the respondent No. 2. 5. Mr. Chakraborty submits that to invoke vicarious liability of a Director of Company under Sections 138/141 of the N.I. Act, the complainant must aver in the complaint that the Director was in charge of, and responsible to the Company for the conduct of its business on the date of commission of the offence, which, in the instant case, the complainant/ respondent No. 2 herein failed to make any such averment in the complaint petition. In this connection, Mr. In this connection, Mr. Charkraborty has relied upon the ratio of the judgment rendered by the Supreme Court in S. M. S. Pharmaceuticals Ltd.-vs-Neeta Bhalla & Anr., reported in (2007) 4 SCC 70 . 6. Per contra, Ms. S. Jahan, learned Addl. Public Prosecutor submits that as the petitioners case involves disputed questions of fact, the principles concerning exercise of power of quashing of the criminal proceeding under Section 482 Cr.P.C., are not applicable and as such, the matter should be left for adjudication in the learned Court below. Ms. Jahan has relied upon the principles enunciated by the Apex Court in Sampelly Satyanarayana Rao-vs-Indian Renewable Energy Development Agency Ltd., reported in (2016) 10 SCC 458 . 7. Ms. R. Devi, learned counsel for the complainant/ respondent No. 2 submits that during the period of commission of the offence, the petitioner was one of the Directors of the Company and owned 70% of its shares and further, that he was responsible to the company for the conduct of its business, for which he is liable to be prosecuted under the N.I. Act for dishonor of the cheque issued in the name of the Company, in favor of the complainant/ respondent No. 2. 8. Perusal of the compliant petition reveals that the complainant/ respondent No. 2 seeks to prosecute the petitioner, who was one of the two Directors of Shree Krishna Paper Mills Pvt. Ltd. (the accused No. 1) along with the other Director (the accused No. 2) under Sections 138 & 141 of the N.I. Act for dishonor of a cheque, bearing No. 115148, dated 09.10.2011, drawn on United Bank of India, Lalbazar Branch, Kolkata, issued on behalf of the said Company in favor of the complainant/ respondent No. 2, in discharge of legally enforceable debt and liability. The said cheque amounting to Rs.6,85,000/- was returned dishonored by the State Bank of India, Beltola Branch, Guwahati, on 21.12.2011, on the ground Fund Insufficient which was not even paid on receipt of demand notice. Here, it needs to be mentioned that when such a complaint is filed under Sections 138 & 141 of the N.I. Act, the principal accused is the Company and the Directors and/ or other office bearers of the company are to be made vicariously liable, provided a clear case is spelled out against them in the complaint petition. Here, it needs to be mentioned that when such a complaint is filed under Sections 138 & 141 of the N.I. Act, the principal accused is the Company and the Directors and/ or other office bearers of the company are to be made vicariously liable, provided a clear case is spelled out against them in the complaint petition. The Supreme Court, in S. M. S. Pharmaceticals Ltd. (supra) has laid down the essential averments to be made in the complaint to rope in the other persons vicariously liable for the offence of the company. The Apex Court observed:- "10 Having regard to the importance of the questions, the matter was referred to a three-Judge Bench of this Court. Upon noticing the rival contentions of the parties as also the precedents operating in the field, the questions were answered by the larger Bench in the following terms: (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 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 © 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. 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 (20 of Section 141. "16 Section 141 of the Act does not say that a Director of a company shall automatically be vicariously liable for commission of an offence on behalf of the Company. What is necessary is that sufficient averments 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 offence by the Company must be in charge and shall also be responsible to the Company for the conduct of its business. "17 By reason of the said provision, a legal fiction has been created. The larger Bench in this case categorically held: "A reference to sub-section (2) of Section 141 fortifies the above reasoning because sub-section (2) envisages direct involvement of any Director, Manager, Secretary or other officer of a company in the commission of an offence. This Section operates when in a trial it is proved that the offence has been committed with the consent or connivance or is attributable to neglect on the part of any of the holders of these offices in a company. In such a case, such persons are to be held liable. Provision has been made for Directors, Managers, Secretaries and other officers of a company to cover them in cases of their proved involvement. "12 The conclusion is inevitable that the liability arises on account of conduct, act or omission on the part of a person and not merely on account of holding an office or a position in a company. Therefore, in order to bring a case within Section 141 of the Act, the company must disclose the necessary facts which make a person liable". 9. Therefore, in order to bring a case within Section 141 of the Act, the company must disclose the necessary facts which make a person liable". 9. In the case of S. S. Rao (supra) , the Apex Court succinctly explained the scope and application of the inherent jurisdiction of the High Court under Section 482 Cr.P.C., so far it relates to the N. I. Act. The Apex Court held that even though the defence of the accused appears to be plausible, but it should not be considered, while exercising power under Section 482 Cr.P.C. The Apex Court held:- "16 As is clear from the above observations of this Court, it is well settled that while dealing with a quashing petition, the Court has ordinarily to proceed on the basis of averments in the complaint. The defence of the accused cannot be considered at this stage. The Court considering the prayer for quashing does not adjudicate upon a disputed question of fact. "18 Thus, the question has to be answered in favour of the respondent and against the appellant. Dishonour of cheque in the present case being for discharge of existing liability is covered by Section 138 of the Act, as rightly held by the High Court". 10. On anxious consideration of the facts revealed in the complaint and the rival contentions made herein, it is apparent that there are disputed questions of facts, as noted above, which can be effectively decided by evidence. The defence of the accused/ petitioner could not be taken into consideration, while cognizance of the alleged offence was taken vide the impugned order, dated 16.02.2012 and this Court in exercise of its inherent jurisdiction under Section 482 Cr.P.C. cannot decide those disputed facts as is done in exercise of the appellate jurisdiction. Consequently, the petition, being devoid of merit, is dismissed. The interim order, dated 28.08.2014, stands vacated.