ORDER : The petitioner in Crl.P.No.5676/2012 is the accused No.3 in C.C. No.26221/2011 pending on the file of the XIV Additional Chief Metropolitan Magistrate, Mayo Hall, Bengaluru. The said proceedings were initiated on the private complaint filed by the complainant – Bennett Coleman & Company Limited. 2. The undisputed facts are that the complainant - Bennett Coleman & Company Limited entered into an agreement with the M/s. IDEB Parkway Holdings Private Limited and M/s. IDEB PSB Estates Private Limited vide Advertising Agreement dated 23.02.2009. Clause 3.1.4 of the said Agreement provided that; “3.1.4 The company agrees, declares, confirms, undertakes and covenants with the BCCL that in the event, the Company, on or before 31st October, 2009 fails to obtain NOC from the HDFC in respect of the sale, transfer and conveyance of the said Premises in favour of BCCL and fails to register the Definitive Documentation in respect of the said Premises in favour of BCCL, then, the Company shall on or before 3rd November, 2009 pay to BCCL the sum of Rs.4,00,00,000/- (Rupees Four Crores Only) whether or not Total Commitment has been utilized by the Company. On payment of sum of Rs.4,00,00,000/- (Rupees Four Crores Only) the Total Commitment shall stand revised to Rs.4,00,00,000/- (Rupees Four Crores Only)” 3. The case of the complainant is that in view of the non-compliance of the obligations under the aforesaid Advertising Agreement dated 03.11.2009, another subsidiary of IDEB Group of Companies issued a cheque bearing No.201008 dated 01.11.2009 drawn on Centurion Bank of Punjab Limited, Bengaluru -560 027. The said cheque when presented for encashment, was dishonored on the ground of ‘Funds Insufficient’. The complainant having issued notice, did not elicit the desired response. Accordingly, the complainant initiated action against the petitioners as well as accused No.1 under Section 138 of Negotiable Instruments Act, 1881 (‘Act’ for short). 4. The learned counsel for the petitioners submits that the petitioner in Crl.P.No.5676/2012 herein is neither a party to the aforesaid agreement dated 23.02.2009 nor is she a signatory to the said cheque. Under the said circumstances, the prosecution of the said petitioner for the alleged offences under Section 138 of the ‘Act’ is wholly illegal. 4. The learned counsel for the petitioners submits that the petitioner in Crl.P.No.5676/2012 herein is neither a party to the aforesaid agreement dated 23.02.2009 nor is she a signatory to the said cheque. Under the said circumstances, the prosecution of the said petitioner for the alleged offences under Section 138 of the ‘Act’ is wholly illegal. Secondly, he contends that even assuming that the petitioner in Crl.P.No.5676/2012 is prosecuted in her capacity as a Director of the Subsidiary Company, namely, IDEB Projects Private Limited, as per the averments made in the complaint itself, no liability had arisen as on the date of the issuance of cheque dated 01.11.2009. The learned counsel has emphasized that as per the averments made in paragraph No.5 of the complaint, the obligations of M/s. IDEB Parkway Holdings Private Limited and M/s. IDEB PSB Estates Private Limited had arisen only on 03.11.2009. Under the said circumstances, there was absolutely no occasion for the petitioners or other Directors of the M/s. IDEB Projects Private Limited to issue the cheque as evidently there was no subsisting debt or liability as on 01.11.2009, the date of issuance of the cheque. 5. Further, he contends that the complaint does not contain necessary averments constituting the offence either under Section 138 of the ‘Act’ or 141 of the ‘Act’. When the complainant has failed prima facie to establish the subsisting debt or liability the question of the petitioner in Crl.P.No.5676/2012, consenting or conniving with the accused persons does not arise at all. Thus, he contends that viewed from any angle, the prosecution of petitioners for the alleged offence is opposed to the provisions of Act and is an abuse of process of the Court. 6. Refuting the contentions, the learned counsel appearing for the contesting respondent submits that necessary averments constituting the offences under Section 138 of the ‘Act’ as well as under Section 141 of the ‘Act’ are pleaded in the complaint. At the time of issuance of the cheque, the petitioner in Crl.P.No.5676/2012 herein was a Director of the company and she was in charge and responsible for day to day affairs of the company. The said averments satisfying the requirements of Section 141(1) of the ‘Act’ are found in the complaint. At the time of issuance of the cheque, the petitioner in Crl.P.No.5676/2012 herein was a Director of the company and she was in charge and responsible for day to day affairs of the company. The said averments satisfying the requirements of Section 141(1) of the ‘Act’ are found in the complaint. The complainant has specifically averred in para No.7 of the complaint that with the knowledge and consent of the petitioners in both these petitions the disputed cheque was issued. Therefore, the petitioners are jointly and severally liable for payment of the amount covered under the aforesaid cheque. 7. In support of his arguments, the learned counsel has placed reliance on the decision of the Hon’ble Supreme Court of India in the case of Standard Chartered Bank vs. State of Maharashtra and others reported in (2016) 6 Supreme Court Cases 62 and with reference to paragraph Nos.23 and 26, has emphasized that the necessary averments giving rise to the culpability of the petitioners having been averred in accordance with provisions of Section 138 of Negotiable Instrument Act and Section 141 of Negotiable Instrument Act, the contention urged by the petitioner in Crl.P.No.5676/2012 that she was not concerned with the issuance of cheque and that she was not knowing the affairs of the company, could be decided only during trial and hence, there is no case for quashment of the complaint. 8. I have considered the rival contentions urged by the parties and have perused the averments made in the complaint and law laid down in the decision relied on by the learned counsel for the petitioners. Undisputedly, the petitioner in Crl.P.No.5676/2012 is neither the drawer of the cheque nor is she a party to the Agreement entered into between the complainant and M/s. IDEB Parkway Holdings Private Limited, M/s. IDEB PSB Estates Private Limited. According to the complainant, the cheque in question was issued by the subsidiary of the said company, in discharge of the debt or liability said to have been due by M/s. IDEB Parkway Holdings Private Limited and M/s. IDEB PSB Estates Private Limited. It is also not in dispute that the cheque in question is signed by the authorized signatory of IDEB Projects Private Limited, namely, accused No.2 and some one else. It is also not in dispute that the cheque in question is signed by the authorized signatory of IDEB Projects Private Limited, namely, accused No.2 and some one else. There is also no dispute with regard to the fact that accused No.2 is the Managing Director of IDEB Projects Private Limited, the drawer of the cheque. The question therefore arises for consideration is whether the petitioner in Crl.P.No.5676/2012 being the Director of the company, which issued the cheque in question, could be deemed guilty of the offence punishable under Section 138 of the Act ? 9. Since the petitioner in Crl.P.No.5676/2012 is sought to be prosecuted in her capacity as the Director of the company, which issued cheque in question, Section 141 of Negotiable Instrument Act may be relevant for our purpose. The said Section is extracted here-in-below; “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 subsection 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: 1[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.] (2) Notwithstanding anything contained in sub-section (1), where any offence 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. Explanation.—For the purposes of this section, — (a) “company” means anybody corporate and includes a firm or other association of individuals; and (b) “director”, in relation to a firm, means a partner in the firm.” 10. In the case of Standard Chartered Bank (cited supra) relied on by the learned counsel for the petitioners, the Hon’ble Supreme Court has analyzed the law on the point and has reiterated the ratio laid down in K.K. Ahuja v. V.K. Vora, as under; “27. The position under Section 141 of the Act can be summarized thus: (i) If the accused is the Managing Director or a Joint Managing Director, it is not necessary to make an averment in the complaint that he is in charge of, and is responsible to the company, for the conduct of the business of the company. It is sufficient if an averment is made that the accused was the Managing Director or Joint Managing Director at the relevant time. This is because the prefix “Managing” to the word “Director” makes it clear that they were in charge of and are responsible to the company, for the conduct of the business of the company. (ii) In the case of a Director or an officer of the company who signed the cheque on behalf of the company, there is no need to make a specific averment that he was in charge of and was responsible to the company, for the conduct of the business of the company or make any specific allegation about consent, connivance or negligence. The very fact that the dishonoured cheque was signed by him on behalf of the company, would give rise to responsibility under sub-section (2) of Section 141. (iii) In the case of a Director, Secretary or Manager [as defined in Section 2(24) of the Companies Act] or a person referred to in clauses (e) and (f) of Section 5 of the Companies Act, an averment in the complaint that he was in charge of, and was responsible to the company, for the conduct of the business of the company is necessary to bring the case under Section 141(1) of the Act. No further averment would be necessary in the complaint, though some particulars will be desirable. No further averment would be necessary in the complaint, though some particulars will be desirable. They can also be made liable under Section 141(2) by making necessary averments relating to consent and connivance or negligence, in the complaint, to bring the matter under that sub-section. (iv) Other officers of a company cannot be made liable under sub-section (1) of Section 141. Other officers of a company can be made liable only under sub-section (2) of Section 141, by averring in the complaint their position and duties in the company and their role in regard to the issue and dishonour of the cheque, disclosing consent, connivance or negligence.” 11. From the above dicta, it follows that when the Managing Director or Joint Managing Director is sought to be prosecuted for the offence under Section 138 of Negotiable Instrument Act, there need not be any specific averment in the complaint that the Managing Director was in charge and responsible for the conduct of the business of the company. It stands to reason that the affairs of the company being managed by the Managing Director, he is answerable to the acts of commission or omission by the company without further proof of the fact that at the time of the commission of the offence he was in charge of the affairs of the company. But, in so far as the proceedings against the directors are concerned, as held in the above decision that a specific averment is required to be made in the complaint that the Director who is sought to be prosecuted for the criminal offences was in charge or was responsible to the affairs of the company at the relevant time. This requirement would arise only when the Director is sought to be prosecuted for the offences committed by the Company. 12. In a case as in the instant case, when the Managing Director and also a Director of the company are sought to be prosecuted, it cannot be presumed that the Director was also running the affairs of the company and was in charge and management of the company. As held in the case of S.M.S. Pharmaceuticals Limited vs. Neeta Bhalla reported in (2005) 8 SCC 89 . As held in the case of S.M.S. Pharmaceuticals Limited vs. Neeta Bhalla reported in (2005) 8 SCC 89 . “10… What is required is that the persons who are sought to be made criminally liable under Section 141 should be, at the time the offence was committed, in charge of and 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. It is only those persons who were in charge of and responsible for the conduct of business of the company at the time of commission of an offence, who will be liable for criminal action. It follows from this 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 under the provision. The liability arises from being in charge of and responsible for the conduct of 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. Conversely, a person not holding any office or designation in a company may be liable if he satisfies the main requirement of being in charge of and responsible for the conduct of business of a company at the relevant time. Liability depends on the role one plays in the affairs of a company and not on designation or status. If being a Director or Manager or Secretary was enough to cast criminal liability, the section would have said so. Instead of “every person” the section would have said “every Director, Manager or Secretary in a company is liable”, etc. The legislature is aware that it is a case of criminal liability which means serious consequences so far as the person sought to be made liable is concerned. Therefore, only persons who can be said to be connected with the commission of a crime at the relevant time have been subjected to action.” 13. The facts narrated in the complaint make it abundantly clear that the IDEB Projects Private Limited did not owe any debt or liability to the complainant. Therefore, only persons who can be said to be connected with the commission of a crime at the relevant time have been subjected to action.” 13. The facts narrated in the complaint make it abundantly clear that the IDEB Projects Private Limited did not owe any debt or liability to the complainant. According to the complainant, the cheque in question was issued to satisfy the liabilities or the debt incurred by M/s. IDEB Parkway Holdings Private Limited and M/s. IDEB PSB Estates Private Limited. Under the said circumstances, without there being any further material to show that as on the date of occurrence of the liability, the petitioner in Crl.P.No.5676/2012 being one of the Directors of the company was fully aware of the affairs of the company and with her knowledge and consent, the cheque in question was issued through IDEB Projects Private Limited merely by reproducing the ingredients of Section 141(2) of the ‘Act’, the criminal liability cannot be fastened on her. In my view, the petitioner in Crl.P.No.5676/2012 cannot be prosecuted in her capacity solely on the ground that she was Director of the said company as on the date of the issuance of the said cheque. The learned counsel for the respondent has emphasized on the language employed in sub-section (2) of Section 141 wherein, it has been stated that where any offence 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. But, in the instant case, as already held above, the circumstances detailed in the complaint do not suggest that the issuance of cheque was within the knowledge of the petitioner in Crl.P.No.5676/2012 or that it was issued with the consent or connivance of the petitioner as contended by the learned counsel for the respondent. 14. On the other hand, the averments made in the complaint go to show that as on the date of issuance of the said cheque, namely, on 01.11.2009, no liability had arisen even with regard to the original agreement dated 23.02.2009. 14. On the other hand, the averments made in the complaint go to show that as on the date of issuance of the said cheque, namely, on 01.11.2009, no liability had arisen even with regard to the original agreement dated 23.02.2009. At the cost of repetition, it may be necessary to refer back to the averments made in this regard in paragraph No.5 of the complaint, which reads as under: “5. The complainant further submits that in view of non-compliance of the obligations under the Advertisement Agreement, on or before 3rd November 2009 the Accused was obligated to make payment of Rs.4,00,00,000.00 (Rupees Four Crores Only) to the Complainant. To honour its commitment, and in due repayment of the said amount of Rs.4,00,00,000.00 (Rupees Four Crores Only) the Accused No.1 Company, being another subsidiary of IDEB Groups of Companies had issued a cheque bearing No.201008 dated 1st November, 2009 drawn on Centurion Bank of Punjab Limited, GF & FF, Samskruthi Chambers, No.103, KH Road (Double Road), Bangalore – 560 027 (Now HDFC Bank) in favour of the complainant for Rs.4,00,00,000.00 (Rupees Four Crores Only) on the assurance that the cheque would be honoured under all circumstances upon presentation.” 15. A plain reading of the said averments in the light of clause 3.1.4 referred above would clearly indicate that the liability had arisen only after the midnight of 03.11.2009. Therefore, viewed from any angle, the petitioner in Crl.P.No.5676/2012 cannot be prosecuted for the dishonor of the cheque dated 01.11.2009 solely on the ground that she was a Director of the drawer company at the time of issuance of the cheque. No doubt, necessary averments with regard to the fact that the petitioner in Crl.P.No.5676/2012 was a Director of the company as on the date of issuance of the cheque are elaborately pleaded, yet, as on that date, the petitioner in Crl.P.No.6875/2012 being the Managing Director of the company, by virtue of Section 141 of the Act, he is primarily responsible for the dishonor of the said cheque. As a result, I hold that the prosecution of the petitioner in Crl.P.No.5676/2012 for the alleged offence under Section 138 of the ‘Act’ is bad in law and cannot be sustained. For the reasons discussed above, the prosecution of the petitioner in Crl.P.No.5676/2012 has turned out to be an abuse of the process of Court and is liable to be quashed. For the reasons discussed above, the prosecution of the petitioner in Crl.P.No.5676/2012 has turned out to be an abuse of the process of Court and is liable to be quashed. Hence the following; ORDER Crl.P.No.5676/2012 is allowed. Crl.P.No.6875/2012 is dismissed. The proceedings initiated in C.C.No.26221/2011 pending on the file of the XIV A.C.M.M., Bengaluru are quashed only in so far as Mrs.Avneet Bedi (accused No.3) in Crl.P.No.5676/2012 is concerned. The trial shall be proceeded with against accused Nos.1 and 2 therein, in accordance with law.