JUDGMENT Shree Prakash Singh, J. Heard Shri Vinay Khare, learned Senior Advocate assisted by Shri Sesh Mani and Ishan Khare, learned counsel for the applicant, Sri Girish Chandra Sinha, learned counsel for opposite party no. 2, Shri Nirmal Kumar Pandey, learned AGAI for the State and perused the material placed on record. 2. The instant application has been filed with a prayer to quash the summoning order dated-27.09.2016 passed by Judicial Magistrate Pratapgarh in Complaint Case No-264/16 filed by the Opposite Party no. 2 U/s-138 Negotiable Instrument Act, as well as subsequent order dated-10.10.2019 passed by Learned Judicial Magistrate Pratapgarh on order dated-02.06.2022 by means which issued N.B.W. as well as Section-82 Cr. P.C. against the petitioner in mechanical manner which is contained as Annexure No. 1, 2 & 3 so for relates to the petitioner. It is further prayed that this Hon'ble Court may kindly be pleased to stay the further proceedings of Complaint Case No-264/16 (Jitendra Pratap Singh v. Dinesh Valecha), U/s-138 Negotiable Instrument Act, summoning order dated-27.09.2016 passed by Learned Judicial Magistrate Pratapgarh as well as subsequent order dated-10.10.2019 by means which issued N.B.W. and also Section-82 Cr.P.C. against the petitioner in mechanical manner. 3. Contention of learned counsel appearing for the applicant is that the present applicant had been the Director of the company, namely, Valecha Engineering Company Ltd. and he has resigned from the Board of Directors of the company in the year 2018. He added that some of the employees of the company, issued a cheque of the company to the opposite party no. 2 and that allegedly became bounced and thereafter, as per the assertion of the opposite party no. 2, he served notice, though, the same was never received to him, as the same was in the name of the company. He next added that, thereafter, the statement of the opposite party no. 2 was recorded under Section 200 of CrPC and thereafter, the learned trial Court passed the order on 27.09.2016, whereby, summoning the present applicant under Section 138 of Negotiable Instrument Act, 1981 (hereinafter referred as 'Act, 1881'). 4. Contention of the learned counsel for the applicant is of three fold. 2 was recorded under Section 200 of CrPC and thereafter, the learned trial Court passed the order on 27.09.2016, whereby, summoning the present applicant under Section 138 of Negotiable Instrument Act, 1981 (hereinafter referred as 'Act, 1881'). 4. Contention of the learned counsel for the applicant is of three fold. The first contention is that while passing the impugned order dated 27.09.2016, the learned trial Court has ignored the mandate of the provision of Section 202(1) of CrPC, as is evident from the order itself that no enquiry or investigation has ever been done though, it is apparent from the plaint of the complaint itself that the opposite party no. 1 has been shown to reside at Bombay which is beyond the territorial jurisdiction of the Magistrate concerned. Secondly, the company has not been arrayed as a party in the complaint, which is erroneous as per the settled proposition of law. 5. Adding his arguments, he contended that the summoning order has been passed without assigning and recording reasons which is apparent from the summoning order itself. Further added that there is violation of the mandate of provision under Section 138 (1)(b) and 141(1) as well as 142 of the Act, 1881. Next submits that in fact, it has not been mentioned in the plaint itself that the notice which was sent by the opposite party no. 2, was ever served upon the present applicant or not?, which is one of the apparent illegality and the same was not dealt with, by the learned trial Court, in its order dated 27.09.2016 and further the annexure no. 4, which is the copy of the disputed cheque dated 09.03.2016, is not signed by the present applicant and he has also supported his version while referring the judgement rendered in Dilip Hariramani v. Bank of Baroda; 2022 LiveLaw (SC) 457 and has referred paragraph 10 of the above said judgements. 6. Paragraph 10 is quoted hereinunder:- "10. We would also refer to the summarisation of law on Section 141 by this Court in National Small Industries Corporation Limited v. Harmeet Singh Paintal and Another, to the following effect: "39. From the above discussion, the following principles emerge: (i) The primary responsibility is on the complainant to make specific averments as are required under the law in the complaint so as to make the accused vicariously liable. From the above discussion, the following principles emerge: (i) The primary responsibility is on the complainant to make specific averments as are required under the law in the complaint so as to make the accused vicariously liable. For fastening the criminal liability, there is no presumption that every Director knows about the transaction. (ii) Section 141 does not make all the Directors liable for the offence. The criminal liability can be fastened only on those who, at the time of the commission of the offence, were in charge of and were responsible for the conduct of the business of the company. (iii) Vicarious liability can be inferred against a company registered or incorporated under the Companies Act, 1956 only if the requisite statements, which are required to be averred in the complaint/petition, are made so as to make the accused therein vicariously liable for offence committed by the company along with averments in the petition containing that the accused were in charge of and responsible for the business of the company and by virtue of their position they are liable to be proceeded with. (iv) Vicarious liability on the part of a person must be pleaded and proved and not inferred. xx xx xx (vii) 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."" 7. Placing reliance on the above said judgement, he submits that the Hon'ble Apex Court has held the averments in the complaint should be clear with respect to vicarious liability. 8. He added that in fact, the primary responsibility was not complied with, by the complainant to make specific averments so as to make the accused, veraciously liable. No presumption can be drawn that every Director knows about the transaction, unless there is a specific averments with respect to the issuance of the check in question therefore, no liability can be fixed under the Act, 1881, in such circumstances. 9. No presumption can be drawn that every Director knows about the transaction, unless there is a specific averments with respect to the issuance of the check in question therefore, no liability can be fixed under the Act, 1881, in such circumstances. 9. Concluding the arguments, the learned Senior Counsel has submitted that the present applicant is a person aggrieved and prejudice is caused to him, because of the summoning order dated 27.09.2016, whereas the mandate of the provision of Act, 1881 as well as the settled proposition of law by the Apex Court, has been ignored. Thus, submission is that the criminal proceeding arising out of the Complaint Case No.264/16 may be quashed. 10. Per Contra, learned counsel appearing for the opposite party no. 2 has very vehementally opposed the contention aforesaid and submits that from the complaint itself, it is evident that the present applicant has been named as Director of Valecha Engeering Ltd, though there is minor incorrectness that the Valecha Engeering Ltd has not been numbered in the array of the opposite parties. He next added that it is also evident from the complaint that the date of bouncing of the check is very well mentioned in paragraph 3 of the complaint and further the date of letter/notice which has been sent to the present applicant, has also been mentioned in paragraph 4, and thus this cannot be said that the date of the bouncing as well as the date of legal notice, has not been transcribed. 11. Adding his arguments, he submits that the minor incorrectness can be cured in a complaint and in support of his contention he has placed reliance on the judgement reported in AIR Online 2019 SC 730; Ashapura Minechem Ltd. v. Philip J. and has referred paragraph 3 of the above said judgement and submits that the Apex Court has also held that description can be looked into by the trial Court during the proceeding of the trial and thus, the present applicant has all opportunity to raise this question before the trial court itself. He also added that, so far as the requirement of Section 138/141 of the Act, 1881 is concerned, this matter can also be analyzed by the trial Court itself. The relevant portion of the judgement is quoted hereinunder :- "3. He also added that, so far as the requirement of Section 138/141 of the Act, 1881 is concerned, this matter can also be analyzed by the trial Court itself. The relevant portion of the judgement is quoted hereinunder :- "3. The question whether such description, is substantial compliance of the requirements of Section 138 read with Section 141 of the Act, is a matter to be analyzed by the Trial Court in the first instance. We do not intend to answer any other contention except to observe that the assumption of the High Court for allowing the quashing petition is contrary to the record and for which reason the same is set aside. All other contentions available to the parties are left open including regarding the correctness of the description as given in the concerned complaint and further as to whether the same meets the mandatory requirements of Section 138 and 141 of the Act." 12. He has further placed reliance on the judgement rendered in AIR 2014 SC 71 ; A.K. Singhania v. Gujarat State Fertilizer Co. Ltd. and has referred paragraph 18 of the aforesaid judgement. 13. Paragraph 18 of the judgement is quoted hereinunder:- "18. From a plain reading of the aforesaid provision it is evident that every person who at the time the offence was committed is 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 our opinion, in the case of offence by 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 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 substance of accusation discloses necessary averments, that would be sufficient to proceed against such of the Directors and no particular form is necessary. 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 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 and responsible to 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. " 14. Referring the aforesaid, he submits that there is no performa prescribed, so far as the complaint under the Act, 1881 is concerned and it has been held that the trial Court can examine that whether the facts which have been referred in the complaint are sufficient to suffice the purposes of complaint as per the requirement under Section 138, 141 and 142 of the Act, 1881. 15. Further contention of the learned counsel for the opposite party no. 2 is that the statement of the complainant has been recorded by the trial Court under Section 200 of CrPC, and therefore that is sufficient for fulfilment of the mandate of procedure prescribed under Section 202(1) of the CrPC and there was no need to further proceed with any enquiry or investigation. Thus, submission is that the order dated 27.09.2016 passed by the trial Court as well as the plaint of the complaint dated 11.04.2016, do not vitiate in the eyes of law and therefore, the present applicant is not entitled for any relief. 16. Having heard the learned counsel for the parties and after perusal of the material placed on record it transpires that the instant application has been filed against the summoning order dated 27.09.2016, wherein, the present applicant has been summoned. 16. Having heard the learned counsel for the parties and after perusal of the material placed on record it transpires that the instant application has been filed against the summoning order dated 27.09.2016, wherein, the present applicant has been summoned. So far as the argument of the learned counsel for the applicant is concerned, that the learned trial Court has failed to comply with the procedure prescribed under Section 202(1) of CrPC is concerned, this Court examined the impugned order dated 27.09.2016, wherein, while going through the statement of the opposite party no. 2/complainant under Section 200 of CrPC as well as the summoning order, there is no single whisper, regarding the satisfaction of the Magistrate/trial Court regarding the genuineness of the parties and no enquiry or investigation has been conducted. 17. So far as the question with respect to non-joinder of company as party in the complaint is concerned, from perusal of the complaint, it transpires that opposite party no. 1 has been arrayed in the name of ^fnus'k cyspk Mk;jsDVj@,e0Mh0 cyspk bUthfu;fjax fy0 cyspk pEcj 4th WQ~yksj va/ksjh U;w fyad jksM va/ksjh csLV eqEcbZ 400053*- 18. Though the name of the company as well as the name of the Director has been mentioned but it seems that due to minor incorrectness, it has not been numbered and this is a curable incorrectness and the same can be corrected before the trial Court. 19. Further, this Court has also examined the question that whether the reasons are required to be recorded while passing the summoning order? The Apex Court in case of Priyanka Srivastava and Others v. State of U.P and another reported in (2015) 6 SCC 287 , Athilakshmi v. State represented by the Drugs Inspector reported in 2023 SCC Online SC 269 has very well settled the law that while passing the summoning order on a complaint case, i.e., other than police case, the Magistrate is duty bound to record detailed reasons and the same should be reflected from order itself. It has also been held that mere recording the point that the Magistrate has looked into gone through, the evidences and the statement of the witnesses, would not suffice the purpose of recording the reasons. 20. It has also been held that mere recording the point that the Magistrate has looked into gone through, the evidences and the statement of the witnesses, would not suffice the purpose of recording the reasons. 20. When this Court examines the impugned summoning order dated 27.09.2016, in light of the above said ratio of the judgement of Apex Court, it seems that the learned trial Court has only mentioned the fact that, he has gone through the statement under Section 200, copy of the cheque and information of the bank and except apart no reasons have been recorded for summoning the applicant/accused and thus, this shows that the learned trial Court has ignored the ratio of the above said judgement. 21. In view of the aforesaid submissions and discussions, the order dated 27.09.2016 is erroneous and against the settled proposition of law. 22. Resultantly, the order dated 27.09.2016 is hereby set-aside and the matter is remitted back to the trial Court concerned to pass fresh order, with in sixty days, in the light of the observations and directions including the mandate of provisions of the Act, 1881 as well as the ratio of the judgement of Apex Court. 23. It is further clarified that the question with respect to nonjoinder of the party, i.e., of the company, in the complaint, is open consideration for the trial Court. 24. The instant application is here by allowed.