JUDGMENT (Prayer: Criminal Original Petition filed under Section 482 of Cr.P.C., seeking to call for the records in S.T.C.No.2 of 2022 on the file of the Learned Judicial Magistrate, FTC-II, Erode and to quash the same. Prayer: Criminal Original Petition filed under Section 482 of Cr.P.C., seeking to call for the records in S.T.C.No.2 of 2022 on the file of the learned Judicial Magistrate, FTC-II, Erode and to quash the same.) Common Order 1. The petitioners, who are arrayed as A1 to A3, have filed the above criminal original petitions seeking to quash the proceedings in S.T.C.No.2 of 2022, on the file of the learned Judicial Magistrate, FTC-II, Erode, for the offence punishable under Sections 138, 141 and 142 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "the N.I. Act"). 2. Since the issues involved in both the criminal original petitions are one and the same and between the same parties, both the Criminal Original Petitions are heard together and disposed of by means of this Common Order. 3. The brief facts leading to the filing of these quash petitions, are as follows: (i) The petitioners in Crl.O.P.No.14301 of 2022 are the accused 1 and 2 and the petitioner in Crl.O.P.No.8399 of 2022 is the third accused in the above proceedings. (ii) The respondent/complainant has initiated the above proceedings under Section 138 of the N.I. Act. The first accused is a company. A2 and A3 are the Managing Director and Director respectively of A1 company. (iii) The accused have borrowed yarn from the respondent/complainant to the tune of Rs.3,16,49,179/- and the accused have issued two post-dated cheques dated 05.09.2018 and 05.10.2018, for a sum of Rs.25,00,000/- and Rs.50,00,000/- respectively towards part payment. The said two post-dated cheques were drawn on State Bank of India, SME Branch, P.N.Road, Tirupur and both the cheques were signed by A2. (iv) It is the contention of the respondent/complainant that all the directors are actively in charge of the affairs of the company and that the cheque dated 05.09.2018, was presented for encashment and the same was rejected on the ground that 'payment stopped by drawer' and when the same was intimated to the petitioners, they requested the complainant to re-present the cheque and accordingly the cheque was once again re-presented on 15.09.2018, but the same was again dishonoured as stop payment instruction was given by the drawer. According to the respondent/complainant even for the third time when the cheque was presented for encashment, the same was dishonoured for the very same reason. Likewise, the cheque dated 05.10.2018, was also dishonoured for the very same reason. (v) After issuing Statutory Notice to the petitioners, the respondent has initiated a complaint under Section 138 of the N.I. Act. The accused 1 and 2 have filed separate quash petition in Crl.O.P.No.14301 of 2022 on the ground that on the date of dishonor of the cheque they had sufficient funds in the first petitioner company's account. The return of cheque was because of a dispute over the accounts and with regard to the same a civil suit is also pending between the parties and therefore on that ground sought to quash the criminal proceedings. (vi) The third accused sought to quash the above criminal proceedings mainly on the ground that there is no averments in the complaint to attract the offence under Section 141 of the N.I. Act, except in the cause title of the complaint, there is no averment made against the third accused and that the cheques were signed only by the second accused and therefore on that ground also A3 seeks to quash the above criminal proceedings against her. 4. The learned senior counsel Mr.S.Ashok Kumar appearing for the petitioners vehemently contended that on the date of dishonor of the cheques, there was sufficient funds available in their account and stop payment was made since there was a dispute over the accounts and in that regard a civil suit has also been filed and despite the same, the present complaint has been filed and therefore the entire proceedings is an abuse of process of law and the same has to be quashed. 5. The learned senior counsel further submitted that in respect of A3, according to him, there is no averment in the complaint against A3 as to the role and responsibility in the company. Admittedly, the cheque has been issued only by the second accused. Hence, for fastening vicarious liability under Section 141 and 142 of N.I. Act, there must be necessary averments in the complaint as to how and in what manner A3 was responsible in the affairs of the company, without making any such averment, bald and general allegations were made, which is not sufficient to fasten vicarious liability on A3. Hence, for fastening vicarious liability under Section 141 and 142 of N.I. Act, there must be necessary averments in the complaint as to how and in what manner A3 was responsible in the affairs of the company, without making any such averment, bald and general allegations were made, which is not sufficient to fasten vicarious liability on A3. Hence, the learned senior counsel submitted that as far as A3 is concerned, namely the petitioner in Crl.O.P.No.8399 of 2022, the entire proceedings is liable to be quashed. In support of his above submissions, the learned senior counsel relied upon a judgment of the Hon'ble Supreme Court in S.M.S.Pharmaceuticals Ltd., Vs. Neeta Bhalla and another reported in (2005) 8 SCC 89 and K.Srikanth Singh Vs. North East Securities Ltd., and another reported in (2007) 12 SCC 788 6. Per contra, the learned counsel appearing for the respondent would submit that in the complaint necessary averements have been made. Further according to him, there are only two directors in the company and it is averred in the complaint that the accused are residing in the same address and doing business and it is also averred that the respondent has requested the accused several times and they assured that the cheques will be honoured, but the cheques were dishonoured two times and on the assurance given by the accused, the cheque was presented for the third time, however on the third occasion also the cheque was dishonoured. Therefore, it is his contention that when there are sufficient averements available, it cannot be said that the third accused role has not been averred. He further submitted that the averments made in the complaint indicated that all the directors are involved in the business of the company and therefore it is sufficient to proceed against the third accused as well. Hence, the learned counsel appearing for the respondent seeks dismissal of both the quash petitions. 7. The learned counsel for the respondent further submitted that even in the legal notice, such stand has been taken by the respondent. Even in the earlier quash petition filed before this Court in Crl.O.P.No.2541 of 2019 by A3 and A2 herein, in paragraph 3 of the above quash petition, they have admitted the fact that they are doing business from the year 2015 and there was a purchase contract dated 01.07.2017, with the respondent herein. Even in the earlier quash petition filed before this Court in Crl.O.P.No.2541 of 2019 by A3 and A2 herein, in paragraph 3 of the above quash petition, they have admitted the fact that they are doing business from the year 2015 and there was a purchase contract dated 01.07.2017, with the respondent herein. Further, it is contended that a Civil Suit has also been filed by the respondent herein against the petitioners herein in O.S.No.467 of 2019 pending on the file of the learned II-Additional District Judge, Tiruppur and A3 has admitted in the written statement filed in the above suit that A2 and A3 are the Directors and they are in charge of the day-to-day affairs of the operation of A1 company. The complaint itself indicate that the petitioners were in charge of the day-to-day affairs of the company and therefore on that ground also, the learned counsel oppose the quash petitions. 8. I have considered the rival submissions and also perused the materials available on record. 9. As far as the first ground raised by the petitioners that though there was sufficient amount in the account of the A1 company, stop payment was made due to dispute in the accounts, cannot be a valid ground to quash the complaint, whereas even if such stop payment is made it will attract the offence under Section 138 of the N.I. Act. With regard to the other contention that there is no specific averment as against A3 is concerned, this Court perused the complaint and the other materials available on record in its entirety. It can be seen that the accused are doing business in the same address, they issued the cheques and they also assured repayment, despite that they dishonoured the cheques on two occasions. The pleadings with regard to the role of the accused need not be in straight jacket formula, the role of the accused can be gathered from a reading of the entire complaint and the complaint cannot be split up or isolate the sentence to come to the conclusion that no specific averment has been made. No doubt, to fasten the liability viz., the vicarious liability against a director of the company there must be necessary averments as required under Section 141 of the N.I. Act, the averment is necessary as held by the Hon’ble Apex Court in S.M.S.Pharmaceuticals Ltd., Vs. No doubt, to fasten the liability viz., the vicarious liability against a director of the company there must be necessary averments as required under Section 141 of the N.I. Act, the averment is necessary as held by the Hon’ble Apex Court in S.M.S.Pharmaceuticals Ltd., Vs. Neeta Bhalla and another reported in (2005) 8 SCC 89 . 10. The Hon'ble Apex Court in K.Srikanth Singh Vs. North East Securities Ltd., and another reported in (2007) 12 SCC 788 , has observed that mere allegation regarding the director's participation in the negotiation for financial help would not give rise to an interference that he was responsible for the day-to-day affairs of the company. It is relevant to note that in one of the quash petition filed in Crl.O.P.No.2541 of 2019, wherein A3 has made a specific pleading that she is in charge of the affairs of the company. Similarly in the written statement filed in O.S.No.467 of 2019, pending on the file of the learned II-Additional District Judge, Tiruppur also it is stated that the accused are in charge of the affairs of the company. Thus, all the above averments clearly shows that the third respondent is in charge of the affairs of the company and in such view of the matter, when there are materials available on record, the prosecution cannot be quashed at this stage. 11. Thus, all the above averments clearly shows that the third respondent is in charge of the affairs of the company and in such view of the matter, when there are materials available on record, the prosecution cannot be quashed at this stage. 11. It is relevant to extract Section 141(2) of the N.I. Act, which reads as follows: “S.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 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 to 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." 12. Section 141(2) of the N.I. Act is a non-obstante clause and merely because specific averment has not been made in the complaint that cannot be a ground to quash the entire complaint. Section 141(2) of the N.I. Act is a non-obstante clause and merely because specific averment has not been made in the complaint that cannot be a ground to quash the entire complaint. There are ample materials available on record, such view of the matter, the respondent viz., the complainant can easily prove the admission made by the third accused in other proceedings to show that she was actively in charge of the affairs of the company. Once it is proved by way of other admission of the accused, before the trial Court then every director is deemed to be guilty of the offence as per Section 141(2) of the N.I. Act. 13. In such view of the matter, this Court is of the firm opinion that quashing of the proceedings will not arise at this stage and accordingly both the Criminal Original Petitions are dismissed. Consequently, the connected miscellaneous petitions are closed.