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2019 DIGILAW 853 (CAL)

Ashwini Kumar Singh v. Panchami Stone Quarry

2019-09-11

MADHUMATI MITRA

body2019
JUDGMENT : 1. The petitioners have approached before this Court by filing an application under Section 482 of the Code of Criminal Procedure 1973 praying for quashing of the proceedings being C.S. Case No.AC/121/17 under Section 138 read with Section 141 of the Negotiable Instruments Act,1881 pending before the Court of learned Judicial Magistrate 2nd Court Suri. At the same time petitioners have approached for quashing of the orders dated 13th July, 2017 and 9th July, 2018 regarding issuance of summons upon the petitioners and rejection of the petitions under Section 305 and 205 of the Code of Criminal Procedure respectively. 2. Before considering the rival submissions made by the learned Counsel for the parties, the relevant facts which are necessary for disposal of this revisional application may be set out briefly. 3. The opposite party M/S Panchami Stone Quarry filed a petition of complaint against the present petitioners on 13th July, 2017 before the learned Additional Chief Judicial Magistrate Suri, Birbhum. The petition of complaint was registered as AC case No.121 of 2017. Learned Additional Chief Judicial Magistrate on the same date transferred the said petition of complaint to the Judicial Magistrate 2nd Court Suri, Birbhum after taking cognizance. Before transferring the said complaint petition to the transferee Court, the learned Additional Chief Judicial Magistrate issued summon mentioning the liberty available to the accused/petitioners to adopt plea bargaining. On 26th March, 2018 the petitioners entered appearance before the learned Judicial Magistrate 2nd Court, Suri, Birbhum and filed two separate applications under Section 205 and 305 of the Code of Criminal Procedure. Learned Magistrate directing the accused persons to appear on 16.05.2018. On 9.07.2018 Learned Magistrate rejected the applications filed by the present petitioners/accused persons under Section 305 and 205 of the code of Criminal Procedure. 4. The petition of complaint filed before the learned Magistrate has been marked as annexed P/1 to the application under section 482 of the Code of Criminal Procedure. 5. Present opposite party/complainant is a partnership Firm and deals in building constructions, etc. having its office at village Panchami, P.S. Md. Bazar, Dist. Birbhum. It has been stated in the petition of complaint that accused No.1 M.B.L. Infrastructures Ltd. is a limited company and the other accused persons are the Directors of accused no.1 company and they are responsible to conduct the day to day business affairs of the accused no.1. having its office at village Panchami, P.S. Md. Bazar, Dist. Birbhum. It has been stated in the petition of complaint that accused No.1 M.B.L. Infrastructures Ltd. is a limited company and the other accused persons are the Directors of accused no.1 company and they are responsible to conduct the day to day business affairs of the accused no.1. It is specifically mentioned in the said petitioner of complaint that accused nos. 3, 4, and 5 and accused no.2 are the authorized signatory of MBL Infrastructures Ltd. The accused company placed orders on different dates for purchasing of GSB, Stone Dust and Stone Aggregate at different rates and quantity vide purchase orders dated 24.12.2015, 25.5.16, 7.01.16, and 9.04.16 and others. The complainant company according to the said purchase orders sold and delivered the said materials at the designated site for a sum of Rs.2,31,60,6,74/- (Rupees Two Crore Thirty One Lakh Sixty Thousand Six hundred Seventy Four) only and the accused persons received the goods in good condition without raising any objection towards the quality and quantity of the materials supplied in any manner whatsoever. The accused Nos. 2 to 5 on behalf of the accused no.1 company in discharge of the said existing legal liabilities against the bills raised by the complainant being issued an account payee cheque bearing no.001174 dated 15th March, 2017 of Rs.1,71,08,512/-(Rupees One Crore Seventy One Lakh Eight Thousand Five Hundred Eleven) only drawn on Kotak Mahindra Bank, Park Street Branch in favour of the complainant duly signed by the accused no.2 being the Director, who was the authorized signatory of accused no.1 company. On 10.04.2017 complainant deposited the said cheque with the bank of the complainant for encashment but the said cheque was dishonoured on the ground that the account closed. 6. The complainant received intimation from the banker on 3rd May, 2017 vide cheque return memo no.3rd May, 2017. 7. Thereafter the complainant through Advocate sent a demand notice dated 29th May, 2017 by speed post on 30th May, 2017 to the accused persons. The accused persons received the said notice on 7th June, 2017. The accused persons did not pay the amount mentioned in the said cheque within the statutory period. 8. Petitioners are the accused nos.3, 4 and 5 of the criminal proceedings pending before the Learned Court below. 9. The complainant filed certain documents by way of affidavit. 10. The accused persons received the said notice on 7th June, 2017. The accused persons did not pay the amount mentioned in the said cheque within the statutory period. 8. Petitioners are the accused nos.3, 4 and 5 of the criminal proceedings pending before the Learned Court below. 9. The complainant filed certain documents by way of affidavit. 10. The learned Senior Advocate appearing for the petitioners while making his submission in favour of quashing of the proceedings as well as for setting aside the impugned orders passed by the learned Magistrate regarding issuance of summons and rejection of the application filed by the petitioners under Section 205 and 305 of the Code of Criminal Procedure has submitted that the petitioners are not Executive Directors and no way responsible for the day to day affairs of the petitioner company. It is his specific contention that the present petitioners that the petitioners are not the signatory of the cheque which was dishonoured. It has been contended on behalf of the petitioners that the learned Judicial Magistrate at the time of issuing summons has failed to apply his mind and mechanically took cognizance of the offence alleged. Learned Counsel has forcefully submitted that learned Magistrate while taking cognizance merely signed on the printed form without applying his judicial mind and the issuance of process against the petitioners by the learned Magistrate is in clear violation of Rule 183 of the Calcutta High Court Criminal Rules and Order. Learned Counsel for the petitioners has further submitted that the petition of complaint did not contain specific averments as required under Section 141 of the Negotiable Instruments Act. In support of his contention he has drawn the attention of the Court to the provision of Section 141 of the Negotiable Instruments Act and submitted that in order to fasten the Directors of a company vicariously for the offence committed by the company under Section 141 of the Negotiable Instruments Act there should be specific averments that the petitioners are in charge of and responsible for the day to day affairs of the business of the company. In absence of such specific averments as required under Section 141 of the Act, the Directors of the company cannot be prosecuted. It is the specific contention of the petitioners that petitioners are neither the authorized signatory of the company nor responsible for the business of the company. In absence of such specific averments as required under Section 141 of the Act, the Directors of the company cannot be prosecuted. It is the specific contention of the petitioners that petitioners are neither the authorized signatory of the company nor responsible for the business of the company. The proceedings pending against petitioners are not maintainable in law and continuance of the criminal proceedings against the petitioner would be an abuse of the process of the Court. 11. Learned Counsel for the petitioners has submitted that the affirmation of affidavit in connection with the complaint case was not in accordance with law and he has tried to impress upon the court by drawing the attention of the Court to the certified copy of affidavit affirmed by the complainant. He has contended that paragraphs have not been mentioned in the affidavit. 12. Non-mention of paragraphs may be due to various reasons. I think on the basis of that no adverse presumption can be drawn at this stage. This cannot be ipso facto a ground for quashing of the complaint. In their application for quashing of the criminal proceedings pending against them, the petitioners have stated that the Learned Magistrate has failed to comply with the provision contained in Rule 183 of the criminal Rules and orders. Rule 183 reads as under:- "Orders requiring the existence of judicial discretion and the final order shall be recorded by the magistrate in his own hand or typed by him, other may be recorded under his dictation by the Bench Clerk." 13. The impugned order regarding issuance of summons has been annexed at page 36 of the application filed by the petitioners. On perusal of the impugned order regarding issuance of summons it does not appear to me that Rule contained in Rule 183 of Criminal Rules and orders has not been complied with. I do not find any force in the submission made by Learned Counsel for the petitioners in his regard. Petitioners have challenged the order dated 09.07.2018 passed by Learned Magistrate. It has been stated by the petitioners that the Learned Magistrate has rejected their prayer under Sections 305 and 205 of the Code of Criminal Procedure. 14. I do not find any force in the submission made by Learned Counsel for the petitioners in his regard. Petitioners have challenged the order dated 09.07.2018 passed by Learned Magistrate. It has been stated by the petitioners that the Learned Magistrate has rejected their prayer under Sections 305 and 205 of the Code of Criminal Procedure. 14. On perusal of the impugned order dated 09.07.2018 it appears that the Learned Magistrate only rejected the prayer of the accused/petitioners to hear the applications under Sections 305 and 205 of the Code of Criminal Procedure in their absence. As such, the above prayer made by the petitioners is purely misconceived and cannot be entertained. 15. On the other hand, Learned Counsel appearing for the opposite party/complainant has submitted that the averments made in the complaint petition are sufficient to fulfill the statutory requirements as contained in Section 141 of the Negotiable Instruments Act. According to his contention there is no necessity for verbatim reproduction of the language of Section 141 of the Act. He has further submitted that the petition of complaint requires to be read as whole and if one goes through the petition of complaint as a whole then, it would be clear to him that the requirements of Section 141 of the Act have been complied with. Learned Advocate appearing for the petitioners has placed reliance on the following decisions:- 1. S.M.S Pharmaceuticals Ltd Vs. Neeta Bhalla and Anr., (2005) 8 SCC 89 ; 2. Katta Sujatha Vs. Fertilizers & Chemicals Travancore Ltd. & Anr. (2002) 7 SCC 655 ; 3. Pepsi foods Ltd & anr. Vs. Special Judicial Magistrate & Anr. (1998)5 SCC 749 ; 4. Mahendra Kumar Rustagi & Anr. Vs. The State of West Bengal, (2012)3 C Cr. LR (Cal) 131; 5. Central Bank Of India Vs. Asian Global Ltd & Ors. (2010) 11 SCC 203 ; On the other hand the Learned Counsel appearing for the opposite party has cited the following decisions in support of his contention: 1. Mannalal Chamaria & Anr. vs. State of West Bengal & Anr. (2014) 13 SCC 571 ; 2. A.R. Radha Krishna Vs. Dasari Deepthi & Ors. 2019 SCC online SC 357; 3. Manoj Jalan Vs. State of West Bengal & Anr. 2009 SCC Online Cal 246; 4. Paresh P. Rajda Vs. State of Maharashtra & Anr., (2008) 7 SCC 442 ; 5. vs. State of West Bengal & Anr. (2014) 13 SCC 571 ; 2. A.R. Radha Krishna Vs. Dasari Deepthi & Ors. 2019 SCC online SC 357; 3. Manoj Jalan Vs. State of West Bengal & Anr. 2009 SCC Online Cal 246; 4. Paresh P. Rajda Vs. State of Maharashtra & Anr., (2008) 7 SCC 442 ; 5. Pepsico India Holding Private Ltd. Vs. Food Inspector & Anr. (2011) 1 SCC 176 ; 6. S.V. Mujumdar & Ors. Vs. Gujarat State Fertilizer Co. Ltd. & Anr. (2005) 4 SCC 173 ; 7. N Rangachari Vs. Bharat Sanchar Nigam Ltd. (2007) 5 SCC 108 ; 8. S.M.S Pharmaceuticals Ltd. Vs. Neeta Bhalla & Anr., (2005) 8 SCC 89 ; 9. Monaben Ketanbhai Shah & Anr. Vs. State of Gujarat & Ors., (2004)7 SCC 15; 10. G. Ramesh Vs. Kanike Harish Kumar Ujwal & Anr., AIR 2019 SC 2595 . 16. Before going into factual details, rival contentions and the legal issues involved in the case at hand, it is useful to refer the relevant provisions of the statute: Section 141 of the Negotiable Instruments reads as under:- "(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 sub-section 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 of prevent the commission of such offence. [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 any body corporate and includes a firm or other association of individuals; and (b) "director", in relation to a firm, means a partner in the firm. 17. It has been specifically argued on behalf of the complainant/opposite party that it is not necessary that the words contained in Section 141of the Act be inserted in a complaint as magic words but the substance of the allegation as a whole is sufficient to fulfill the requirement of the ingredients of the said provision for being proceeded against the Directors of the company. 18. In view of action 141 of the Negotiable Instruments Act a person although is not personally liable for commission of such an offence will be vicariously liable. In order to infer a person vicariously liable for the offence committed by the company under Section 138 of Negotiable Instruments Act, the strict compliance of statutory requirements under Section 141 of the Act is necessary. Section 141 of the Act relates to the offence committed by the company and a person can be held vicariously liable for commission of an offence by the company. The question of application of vicarious liability arises only when the statutory requirements in Section 141 are complied with. 19. During the course of hearing Learned Counsel appearing for the petitioner has given emphasis on the ratio of the judgment in S.M.S. Pharmaceuticals Ltd. V. Neeta Bhalla and Another reported in (2005) 8 SCC 89 . 20. The question of application of vicarious liability arises only when the statutory requirements in Section 141 are complied with. 19. During the course of hearing Learned Counsel appearing for the petitioner has given emphasis on the ratio of the judgment in S.M.S. Pharmaceuticals Ltd. V. Neeta Bhalla and Another reported in (2005) 8 SCC 89 . 20. From that judgment, it appears that three questions for determination by a larger Bench were referred. Those three questions are as follows: "(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." 21. In paragraph 19 of the said judgment our Apex Court gave the answers of those three questions 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. 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. 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." Several decisions have been passed on this issue, our Apex Court had the occasion to consider the issue involved in this case, as to whether the language of the statute needs to be reproduced in the complaint or not. In this connection it would not be out of place to mention the decisions in K.P.G. Nair V. Jindal Menthol India Limited reported in (2001)10 SCC 218 and in Monaben KetanBhai Shah And Another Vs. State of Gujarat And Others reported in (2004)7 SCC 15. It was clearly laid down that it is not necessary to reproduce the language of Section 141 of the Act in verbatim as the complaint has to be read as a whole. In this judgments, it was held that if the substance of the allegations made in the complaint fulfills the requirements of Section 141 of the Act and then there is no bar to proceed with the complaint. In this judgments, it was held that if the substance of the allegations made in the complaint fulfills the requirements of Section 141 of the Act and then there is no bar to proceed with the complaint. The judgments as referred above got approval in the three Judge Bench of Hon'ble Supreme Court in SMS Pharmaceuticals Limited. Paragraph 17 of the said judgment may be mentioned here. 22. Paragraph 17 of the said judgment is as follows: "17.K.P.G. Nair v. Jindal Menthol India Ltd. [ (2001) 10 SCC 218 : 2002 SCC (Cri) 1038] was a case under the Negotiable Instruments Act. It was found that the allegations in the complaint did not in express words or with reference to the allegations contained therein make out a case that at the time of commission of the offence, the appellant was in charge of and was responsible to the company for the conduct of its business. It was held that the requirement of Section 141 was not met and the complaint against the accused was quashed. Similar was the position in Katta Sujatha v. Fertilizers & Chemicals Travancore Ltd. [ (2002) 7 SCC 655 : 2003 SCC (Cri) 151] This was a case of a partnership. It was found that no allegations were contained in the complaint regarding the fact that the accused was a partner in charge of and was responsible to the firm for the conduct of business of the firm nor was there any allegation that the offence was made with the consent and connivance or that it was attributable to any neglect on the part of the accused. It was held that no case was made out against the accused who was a partner and the complaint was quashed. The latest in the line is the judgment of this Court in Monaben Ketanbhai Shah v. State of Gujarat [(2004) 7 SCC 15 : 2004 SCC (Cri) 1857] . It was observed as under: (SCC p. 17, para 4) "4. It is not necessary to reproduce the language of Section 141 verbatim in the complaint since the complaint is required to be read as a whole. If the substance of the allegations made in the complaint fulfil the requirements of Section 141, the complaint has to proceed and is required to be tried with. It is not necessary to reproduce the language of Section 141 verbatim in the complaint since the complaint is required to be read as a whole. If the substance of the allegations made in the complaint fulfil the requirements of Section 141, the complaint has to proceed and is required to be tried with. It is also true that in construing a complaint a hypertechnical approach should not be adopted so as to quash the same. The laudable object of preventing bouncing of cheques and sustaining the credibility of commercial transactions resulting in enactment of Sections 138 and 141 has to be borne in mind. These provisions create a statutory presumption of dishonesty, exposing a person to criminal liability if payment is not made within the statutory period even after issue of notice. It is also true that the power of quashing is required to be exercised very sparingly and where, read as a whole, factual foundation for the offence has been laid in the complaint, it should not be quashed. All the same, it is also to be remembered that it is the duty of the court to discharge the accused if taking everything stated in the complaint as correct and construing the allegations made therein liberally in favour of the complainant, the ingredients of the offence are altogether lacking. The present case falls in this category as would be evident from the facts noticed hereinafter." It was further observed: (SCC pp. 18-19, para 6) "6. ... The criminal liability has been fastened on those who, at the time of the commission of the offence, were in charge of and were responsible to the firm for the conduct of the business of the firm. These may be sleeping partners who are not required to take any part in the business of the firm; they may be ladies and others who may not know anything about the business of the firm. The primary responsibility is on the complainant to make necessary averments in the complaint so as to make the accused vicariously liable. For fastening the criminal liability, there is no presumption that every partner knows about the transaction. The primary responsibility is on the complainant to make necessary averments in the complaint so as to make the accused vicariously liable. For fastening the criminal liability, there is no presumption that every partner knows about the transaction. The obligation of the appellants to prove that at the time the offence was committed they were not in charge of and were not responsible to the firm for the conduct of the business of the firm, would arise only when first the complainant makes necessary averments in the complaint and establishes that fact. The present case is of total absence of requisite averments in the complaint." On perusal of the petition of complaint, it appears that the exact words used in Section 141 of the Act have not been averred in the said complaint stating that the accused persons/petitioners were in charge of and were responsible to the company for the conduct of the business of the company. 23. In paragraph 19(a) of the decision of S.M.S.Pharmaceutical Ltd. the Hon'ble Supreme Court has been observed as under:- "It is necessary to specifically aver in a complaint under Section 141 that at the time of 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 averments being in a complaint, the requirements of Section 141 cannot be said to be satisfied." 24. The decision of Hon'ble Apex Court has been referred to and relied on in various subsequent decisions of the Apex Court. 25. In this connection, it would not be out of place to refer paragraph 14 of the decision of Apex Court in A.K.Singhania Vs. Gujarat State Fertilizer Co.Ltd. reported in (2013)16 SCC 630 . "14. From a plain reading of the aforesaid provision it is evident that every person who at the time the offence was committed was in charge of and responsible to the company shall be deemed to be guilty of the offence under Section 138 of the Act. In the face of it, will it be necessary to specifically state in the complaint that the person accused was in charge of and responsible for the conduct of the business of the company? In the face of it, will it be necessary to specifically state in the complaint that the person accused was in charge of and responsible for the conduct of the business of the company? In our opinion, in the case of offence by the company, to bring its Directors within the mischief of Section 138 of the Act, it shall be necessary to allege that they were in charge of and responsible to the conduct of the business of the company. It is a necessary ingredient which would be sufficient to proceed against such Directors. However, we may add that as no particular form is prescribed, it may not be necessary to reproduce the words of the section. If reading of the complaint shows and the substance of accusation discloses necessary averments, that would be sufficient to proceed against such of the Directors and no particular form is necessary. However, it may not be necessary to allege and prove that, in fact, such of the Directors have any specific role in respect of the transaction leading to issuance of cheque. Section 141 of the Act makes the Directors in charge of and responsible to the company "for the conduct of the business of the company" within the mischief of Section 138 of the Act and not particular business for which the cheque was issued. We cannot read more than what has been mandated in Section 141 of the Act." 26. Again the said judgment of SMS Pharmaceuticals Ltd. was referred and discussed in Tamil Nadu News Print and Papers Ltd. Versus D.Karunakar and Others reported in (2016) 6 SCC 78 . 27. In paragraph 14 of the said judgment the Hon'ble Supreme Court has been pleased to observe as under: "Upon perusal of the complaint, we find that an averment has been made to the effect that Accused 3 to 10 were, in fact, in charge of the day-to- day business of Accused 1 Company." 28. Hon'ble Court held that as there was an allegation to the effect that accused 2 to 10 were involved in day to day business of accused company and set aside the order passed by the High Court. 29. Hon'ble Court held that as there was an allegation to the effect that accused 2 to 10 were involved in day to day business of accused company and set aside the order passed by the High Court. 29. In the petition of complaint, it has been stated that all the accused persons are responsible to conduct the day to day business affairs of the accused no.1 company and accused nos.3,4 and 5 and 2 are the authorized signatory at MBL Infrastructures Ltd. It shows that the accused were involved in the day to day business of the company. 30. I have gone through the decisions cited by the Learned Counsel for the parties. 31. It is true that the decision of S.M.S. Pharmaceuticals Limited has been passed by three Judge Bench. Subsequent judgments have been rendered by two Judge Bench. At the time of perusal of the decisions so cited at Bar, it appears to me that in all the subsequent decisions the judgment of S.M.S. Pharmaceuticals Limited has been referred to and discussed and relied on. As such, the question that a two Judge Bench cannot overrule a three Judge Bench decision does not arise at all as there is no conflict of decisions between the larger Bench and smaller Bench. Subsequent Judgments passed by the Apex Court are in consonance with the ratio enunciated by the Apex Court in S.M.S. Pharmaceuticals Ltd. 32. It is settled principle of law that three categories of persons are covered by Section 141 of the Negotiable Instruments Act. 33. The said three categories of persons: (1) The company who committed the offence as alleged; (2) Everyone who was in-charge of and was responsible for the business of the company; (3) Any other person who is a Director or a Manager or a Secretary or Officer of the Company with whose connivance or due to whose neglect the company has committed the office. 34. In the petition of complaint, it has been specifically averred that all the accused persons are responsible and liable for the daily business management of the accused. There are no essential differences between the averments made in the petition of complaint and the language used in Section 141 of the Act i.e. accused are in charge of and responsible for the conduct of the business of the company. 35. There are no essential differences between the averments made in the petition of complaint and the language used in Section 141 of the Act i.e. accused are in charge of and responsible for the conduct of the business of the company. 35. I think, the averments made in the complaint are sufficient to meet the requirements as contained in Section 141 of the Act. The contention of the Learned Advocate for the petitioners that the petition of complaint does not fulfill the basic requirements of Section 141 of the Act is not tenable. Moreover, when the petition of complaint discloses the commission of the alleged offence against the accused persons, then the question of quashing of the criminal proceedings arising out of the complaint does not arise at all. There are specific averments in the complaint that the accused mischievously issued the cheque with ulterior motive. 36. In this connection, I would like to refer to a decision in Criminal Appeal Nos.403-405 of 2019 in the matter of A.R. Radha Krishna V. Dasari Deepthi reported in Criminal Appeal Nos.403-405 of 2019 (2019 SCC Online SC 357). 37. In paragraph 9 and 10 of the said judgment our Apex Court has been pleased to observe as under: "9. Having heard learned counsel for the parties and carefully scrutinizing the record, we are of the considered opinion that the High Court was not justified in allowing the quashing petitions by invoking its power under S.482, Cr.P.C. In a case pertaining to an offence under S. 138 and S. 141 of the Act, the law requires that the complaint must contain a specific averment that the Director was in charge of, and responsible for, the conduct of the company's business at the time when the offence was committed. The High Court, in deciding a quashing petition under S. 482, Cr.P.C., must consider whether the averment made in the complaint is sufficient or if some unimpeachable evidence has been brought on record which leads to the conclusion that the Director could never have been in charge of and responsible for the conduct of the business of the company at the relevant time. While the role of a Director in a company is ultimately a question of fact, and no fixed formula can be fixed for the same, the High Court must exercise its power under S. 482, Cr.P.C. when it is convinced, from the material on record, that allowing the proceedings to continue would be an abuse of process of the Court. [See Gunamala Sales Private Limited v. Anu Mehta, (2015) 1 SCC 103 ] 10. A perusal of the record in the present case indicates that the appellant has specifically averred in his complaint that the respondent nos. 1 and 2 were actively participating in the day-today affairs of the accused no. 1 - company. Further, the accused nos. 2 to 4 (including the respondent nos. 1 and 2 herein) are alleged to be from the same family and running the accused no. 1 - company together. The complaint also specificies that all the accused, in active connivance, mischievously and intentionally issued the cheques in favor of the appellant and later issued instructions to the Bank to "Stop Payment". No evidence of unimpeachable quality has been brought on record by the respondent nos. 1 and 2 to indicate that allowing the proceedings to continue would be an abuse of process of the court." 38. In view of above, I am of the view that continuance of criminal proceedings against the petitioners would not be an abuse of the process of the Court. Hence, the prayer for quashing of the proceedings is dismissed. 39. Before parting with the case, I would like to clarify that the observations as made in this judgment should not be taken as an expression of any opinion regarding the merit of the criminal proceedings pending before the Learned Magistrate. The Learned Trial Magistrate shall proceed with the complaint and dispose of the same in accordance with the law with utmost expedition. 40. In view of the order passed in main application being C.R.R.No.2835 of 2018, become infructuous and stand dismissed. 41. Urgent Photostat certified copy of this order, if applied for, shall be supplied expeditiously after complying with all necessary legal formalities.