ORDER : Above appeal is filed by the accused in C.C.No.1160/2002 on the file of the Judicial First Class Magistrate -I, Ernakulam. The appeal is filed against the order of acquittal of the 2nd respondent herein. The above case is filed by the appellant before the lower Court against respondent No.1 and 2 to prosecute them under section 138 of the Negotiable Instruments Act (hereinafter, the parties are mentioned in accordance to their rank before the trial Court). 2. The case of the complainant in brief is as follows:- The complainant is engaged in the business of transporting containers and hiring trailer lorries for transporting. According to the complainant, the accused issued a cheque drawn on M/s.Federal Bank Ltd. dated 26.06.1999 for Rs.1,96,000/-in favour of the complainant for discharging the liability incurred in the business. The cheque was presented for encashment, it was dishonored with an endorsement 'fund insufficient'. When a statutory notice was issued, the accused refused to pay the amount. Hence, the complaint was filed. 3. To substantiate the case, one witness was examined on side of the prosecution. Exts. P1 to P6 are the exhibits. On going through the evidence and documents, the trial Court found that, the 1st accused is guilty of the offence under Section 138 of the Negotiable Instruments Act. Since, the 1st accused is a firm, an amount of Rs.5,000/-was imposed as fine. The 2nd accused was found not guilty and he was acquitted. Against the acquittal order of the 2nd accused, this Criminal Appeal is filed by the complainant. 4. Heard both sides. The counsel for the complainant submitted that, the order of acquittal of the 2nd accused in this case is illegal, in the light of the judgment of the Apex Court in S.M.S. Pharmaceuticals Ltd. Vs. Neetha Bhalla (2005(4)KLT 209). According to the counsel, the 2nd accused is the Managing Partner of the firm. He signed the cheque on behalf of the firm. Therefore, he is responsible as per Section 141 of the Negotiable Instruments Act. 5. The counsel for the 2nd accused submitted that, the decision in S.M.S.Pharmaceuticals case (Supra) has not considered the effect of partners in a partnership firm. He signed the cheque on behalf of the firm. Therefore, he is responsible as per Section 141 of the Negotiable Instruments Act. 5. The counsel for the 2nd accused submitted that, the decision in S.M.S.Pharmaceuticals case (Supra) has not considered the effect of partners in a partnership firm. According to the counsel, as per the Partnership Act, Managing Partner is not defined and hence if a partner is implicated as an accused in a criminal complaint, there should be averments in the complaint to the effect that he was in charge of, and was responsible to the firm for the conduct of the business of the company, as well as the company. According to the counsel, there is no such averment in the complaint and hence the benefit of the decision of the S.M.S.Pharmaceuticals Ltd. Vs. Neetha Bhalla (Supra) is actually in support of his contention. The learned counsel also cited the decision of the Division Bench of this Court in Mymoonath Beevi Vs. State of Kerala, 2005(4) KLT 174 . The counsel submitted that, the Division Bench of this Court observed in para 12 of the decision that, the complaint should contain the necessary facts constituting the offence as against the person arranged as the accused. If there is no such averments, according to the counsel, the prosecution is not possible against a partner, even if he is the Managing Partner of the firm. The counsel also submitted that, no notice is issued to the firm in this case. He also submitted that the execution of the cheque is not proved in this case. 6. After hearing both sides, I am not in a position to agree with the contentions of the 2nd accused in this case, who is acquitted by the trial Court. S.M.S.Pharmaceuticals Ltd. (Supra) is the three Bench decision of the Supreme Court. Actually the case was referred by a three Bench because of the difference of opinion of the other two benches. The matter was referred to the larger bench for the determination of the following questions. S.M.S.Pharmaceuticals Ltd. (Supra) is the three Bench decision of the Supreme Court. Actually the case was referred by a three Bench because of the difference of opinion of the other two benches. The matter was referred to the larger bench for the determination of the following questions. (a) Whether for purposes of S.141 of the Negotiable Instruments Act, 1881, it is sufficient if the substance of the allegation read as a whole fulfill the requirements of the said section and it is not necessary to specifically state in the complaint that the persons 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 of 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. 7. After considering the entire facts and the law on the subject the larger bench of the Supreme Court answered the point in the following manner. (a) It is necessary to specifically aver in a complaint under S.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 S.141 and has to be made in a complaint. Without this averment being made in a complaint, the requirements of S.141 cannot be said to be satisfied. (b) The answer to question posed in sub para (b) has to be in negative. Merely being a director of a company is not sufficient to make the person liable under S.141 of the Act. A director in a company cannot be deemed to be in charge of and responsible to the company for conduct of its business. The requirement of S.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 conduct of its business. The requirement of S.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 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 conduct of its business. When that is so, holders of such positions in a company become liable under S.141 of the Act. By virtue of the office they holds 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 S.141. So far as signatory of a cheque which is dishonored is concerned, he is clearly responsible for the incriminating act and will be covered under sub-s. (2) of S.141. The question(c)refers, whether in the absence of specific averments against 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 the conduct of its business could be proceeded against. The larger bench answered this question to the effect that, the Managing Director or Joint Managing Director would be admittedly in charge of the company and responsible to the company for conduct of its business. When that is so, holders of such position in a company become liable under Section 141 of the Act. By virtue of their portion, 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, the larger Bench of the Supreme Court held that, they get covered under section 141 of the Negotiable Instruments Act. It is also mentioned in the decision that, 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. Admittedly, in this case 2nd accused is the Managing Director of the firm. It is also mentioned in the decision that, 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. Admittedly, in this case 2nd accused is the Managing Director of the firm. It is also the admitted fact that, he is the signatory in the cheque. He signed the cheque on behalf of the firm. In such circumstances, simply because there is no averments in the complaint to the effect that, the Managing Partner is in charge and responsible he cannot escape from responsibility. Therefore, the contention of the 2nd accused is unsustainable. 8. Then the counsel submitted that, the decision of the larger bench has not considered the Partnership Act and the Apex Court considered only the Companies Act. I cannot agree to the contention of the 2nd accused. Explanation (a) to Section 141 of the Negotiable Instruments Act clearly says that 'Company' means any body corporate and includes a firm or other association of individuals. Explanation (b) says that 'Director' in relation to a firm means a partner in the firm. In the light of the above explanation in Section 141 of the Negotiable Instruments Act, I cannot agree with the counsel for the 2nd accused that the principle laid down in S.M.S.Pharmaceuticals Ltd. (Supra)is not applicable to a partner of a firm. 9. The 2nd accused also contented that there is no evidence in this case to prove the execution of the cheque. Therefore, even though this is an appeal against the acquittal, an accused can take any contention in his favour before this Court. It is an admitted case that, the 1st accused in this case is M/s. Sea Wings Shipping & Others, Willingdon Island represented by its Managing Partner Mr. Varghese Philip. Mr. Varghese Philip is the 2nd accused. He is arrayed as the 2nd accused, because he is the Managing Partner. The 1st accused firm was convicted by the Trial Court under Section 138 of the Negotiable Instruments Act. Since 1st accused is a firm, only fine was imposed. The conviction and sentence imposed on the 1st accused is not challenged by the 1st accused. 1st accused is represented by the 2nd accused. The conviction and sentence imposed on the 1st accused became final. Since 1st accused is a firm, only fine was imposed. The conviction and sentence imposed on the 1st accused is not challenged by the 1st accused. 1st accused is represented by the 2nd accused. The conviction and sentence imposed on the 1st accused became final. In such circumstances, the 2nd accused, who is actually representing the 1st accused cannot contend in an appeal against acquittal of the 2nd accused to the effect that, the execution of the cheque is not proved, especially when the conviction and sentence against the 1st accused under section 138 of the Negotiable Instruments Act became final. 10. Hence, I think, the 2nd accused also committed an offence under section 138 of the Negotiable Instruments Act. The trial Court imposed a fine of Rs.5,000/-to the 1st accused because 1st accused is a partnership firm. 2nd accused is the Managing Partner of the firm. The transaction in this case happened in 1999. The cheque involved in this case is for an amount of Rs.1,96,000/-. Considering the fact and circumstances of the case, I think the payment of compensation to the complainant will serve the purpose, without sending the 2nd accused to jail. 11. Hence, the order of acquittal of the 2nd respondent/ 2nd accused as per judgment dated 28.04.2005 in C.C.No.1160/2002 of the Judicial First Class Magistrate -I, Ernakulam is set aside. 12. Hence, this appeal is allowed. The 2nd respondent/2nd accused is convicted under section 138 of the Negotiable Instruments Act. He is sentenced to undergo imprisonment till rising of the Court and to pay a compensation of Rs.1,96,000/-. In default of payment of compensation, 2nd respondent will undergo simple imprisonment for 3 months. If the compensation is paid by the 2nd respondent, the entire amount should be disbursed to the appellant/complainant.