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2023 DIGILAW 7 (MEG)

Sarita Harish Kanchan v. Miss Riya Bawri

2023-03-14

W.DIENGDOH

body2023
JUDGMENT 1. Several criminal complaint petitions identical and similar in nature were filed before the Court of the learned Additional Deputy Commissioner (Judicial) at Shillong. The complainant in all the said complaint petitions is the respondent No. 1 herein. Again, in all the complaint petitions the same set of accused persons were arrayed viz; i) M/s Twelve Baskets (Registered Firm); ii) Mr. Sachhidanand Kanchan; iii) Mr. Mark Alexander Davidson; and iv) Mrs. Sarita Harish Kanchan. 2. The complaint was made under Section 138 read with Sections 141 and 142 of the Negotiable Instruments Act, 1881 and also read with Sections 420, 418, 417, 403, 409 and 406 IPC. The offences alleged is with regard to dishonour of cheques drawn on HDFC Bank, Kalapahar, Guwahati Branch by the respondent No. 2 Firm. 3. According to Annexure P-2 of criminal petition No. 38 of 2021 which is a copy of the order sheet reflecting the order dated 05.02.2020 passed by the learned Judicial Magistrate First Class, Shillong, it is seen that the learned Magistrate had perused the statement of the complainant/respondent No. 1 which was filed by way of an affidavit, whereupon the learned JMFC has taken cognizance of the case and had issued process to the said accused persons, including the petitioner herein. 4. Being highly aggrieved and dissatisfied with the proceedings of the said complaint case, the petitioners has accordingly approached this Court with a petition under Section 482 Cr.P.C with a prayer to quash the summons and other proceedings against the petitioners. 5. Since all the related petitions, as stated above are identical and similar in nature, therefore it is deemed convenient and expedient to dispose of the same by this common judgment and order. 6. In Crl.Petitions No. 35 to 56 of 2021, the petitioner's stand is that she is not at all involved in the partnership firm and therefore, could not have been proceeded against and in Crl.Petitions No. 74 to 94 of 2021, the stand of the petitioner therein is that although, he was a Director of the said partnership firm, he has since retired from the Firm at the time the alleged cheques were issued and dishonoured. 7. Mr. A. Jebaraj, learned counsel appearing for the petitioner in Crl.Petitions No. 35 to 56 of 2021 has submitted that the petitioner, Smti. 7. Mr. A. Jebaraj, learned counsel appearing for the petitioner in Crl.Petitions No. 35 to 56 of 2021 has submitted that the petitioner, Smti. Sarita Harish Kanchan is the sister-in-law of the respondent No. 3 and has never been associated with the respondent No. 2/accused No. 1 Firm at any point of time. 8. The petitioner not being involved in the affairs of the respondent No. 2 Firm, there is no evidence of commission of any alleged crime, even if the same is allegedly committed by the respondent No. 2 Firm. Since no cheque was drawn by the petitioner which was subsequently dishonoured, therefore no case under Section 138 of the Negotiable Instruments Act, 1881 can be made out. 9. Another contention of the petitioner is that Section 138 of the N.I. Act is not applicable as no demand was made from the petitioner in writing in accordance with the proviso to Section 138, the notice issued by the respondent No. 1 being addressed only to the respondent No. 2 Firm. 10. Again, it is contended that the respondent No. 1 in her/him complaint petition has only made a bald averment, but no material averment was made that the petitioner was a signatory of the said cheques. 11. It is also cited that the allegations at paragraphs 9 and 10 of the complaint petition that the petitioner along with respondents No. 3 and 4 as accused persons No. 2 to 4 were incharge and responsible for the conduct of the business of the firm was also vague as no specific period as to when the offence was committed and further, that no specific designation was attributed to the petitioner to attract the provisions of Section 141 (2) N.I. Act. Therefore, no vicarious liability can be fastened upon the petitioner. 12. In support of this contention, the learned counsel for the petitioner has cited the following cases: - i) Pooja Ravinder Devidasani v. State of Maharashtra Anr: (2014) 16 SCC 1 , paragraphs 15, 17, 18, 22, 27; ii) K.K. Ahuja v. V.K. Vora Anr: (2009) 10 SCC 48 , paragraphs 9, 15, 18-25, 27; iii) Maksud Saiyed v. State of Gujarat Ors: (2008) 5 SCC 668 , paragraphs 11, 12, 13; iv) S.M.S. Pharmaceuticals Ltd v. Neeta Bhalla Anr: (2005) 8 SCC 89 , paragraphs 18 19. 13. Mr. 13. Mr. Jebaraj has also submitted that in an application under Section 482 Cr. P.C, the guidelines set out in the case of State of Haryana Ors v. Bhajan Lal Ors: 1992 Supp (1) SCC 335, more particularly at paragraph 102 can be used as the standard as the grounds set out therein would apply to a quashing petition as the present one. Grounds 1, 3 and 5 of the said paragraph 102 has been referred to by the learned counsel to submit that no offence can be made out against the petitioner as those which are cited in the complaint petition. 14. Again, the learned counsel has submitted that the alleged offences under the Indian Penal Code said to have been committed by the petitioner are also not at all applicable as there was no evidence or specific averments made by the complainant/respondent No. 1 in her/him complaint to attract the provisions of Sections 420, 418, 417, 403 and 406 IPC, more so as Section 409 can never be attributed to the petitioner as she is not a public servant or a banker or merchant or an agent and as such, could not have committed any criminal breach of trust. 15. In the light of the submission made, Mr. Jaberaj has made a prayer that the summons and proceedings as aforesaid be quashed as against the petitioner herein. 16. In Crl.Petitions No. 74 to 94 of 2021, the stand of the petitioner is slightly different as the accusation against him is that being a Director of the Firm, he is also vicariously liable on account of the cheques drawn by the respondent No. 2 Firm which has been dishonoured. 17. Ms. S. Agnihotri, learned counsel for the petitioner has submitted that the main thrust of the contention of the petitioner Mr. Mark Alexander Davidson is that though admittedly, he was a Director of the said Partnership Firm (respondent No. 2), yet at the time when the first cheque was issued by the respondent No. 2, that is, on 30.04.2019, he had already retired from the said Firm by virtue of a Deed of Retirement executed on 01.04.2018 and as such, could not have been prosecuted or issued summons against as was apparent from the impugned order and proceedings. 18. 18. Since the allegations made in the complaints do not make out a prima facie case against the petitioner, therefore resort to Section 482 Cr.P.C. is justified and the relief sought for may be allowed by this Court, it is further submitted. The case of Bhajan Lal (supra) at paragraph 102 was cited in this regard to say that in that case, the Hon'ble Supreme Court has culled out non-exhaustive guidelines for the exercise of the inherent powers of the High Court under Section 482 Cr.P.C. and not merely only in the case of matters arising out of Chapter XIV of the said Code. 19. Again, it is submitted that from the evaluation of the materials and documents on record, including the complaint and the Deed of Retirement, it is apparent that no prima facie case is made out against the petitioner herein, since he was not a signatory to the said cheques which were allegedly dishonoured and was also not in charge of the affairs of the said partnership firm at the material time. 20. The respondent No. 1 has failed to make any material averment under Section 141 of the N.I. Act that the petitioner herein was in-charge of and was responsible to the respondent No. 2 Firm at the time the alleged offence was committed and only a bald or mechanical averment made in the complaint is not sufficient, but the specific role of the petitioner herein was required to be averred because a complaint under Section 138 N.I. Act seek to place vicarious criminal liability on individuals. The case of S.M.S. Pharmaceuticals Ltd. (supra) paragraph 18 as well as the case of Pooja Ravinder Devidasani (supra) at paragraphs 17 and 21 and also the case of K. K. Ahuja (supra) at paragraph 25 was referred to by the learned counsel for the petitioner to support his contention. 21. Yet another contention raised by the learned counsel for the petitioner is that the petitioner is not vicariously liable under the Partnership Act as the Act only contemplates civil liability and not criminal liability. 21. Yet another contention raised by the learned counsel for the petitioner is that the petitioner is not vicariously liable under the Partnership Act as the Act only contemplates civil liability and not criminal liability. The case of Shyam Sunder v. State of Haryana: (1989) 4 SCC, 630 paragraphs 8, 9 and 10 was cited in this regard which principle was almost reiterated by the Andhra Pradesh High Court in the case of G. Prameela (Smti) v. Smt. Avula Hymavathi : 1997 (2) ALT (Crl.) 210, paragraph 6 had quashed similar criminal proceedings against a sleeping partner for the offence under Sections 120-B, 420, 406 and 468 IPC holding that : '6.... In fact, every partner is liable for an act of the firm '. 'Act of a firm' has been defined to mean 'any act or omission by all the partners or by any partner or agent of the firm which gives rise to a right enforceable by or against the firm' This is the civil liability of the firm and its partners. But, in the instant case, we are concerned with criminal liability under penal provisions and not civil liability of the partners. There is no vicarious liability in criminal law unless the statute takes that also within its fold. There is nothing in the Partnership Act making all the partners of a firm liable for the criminal offences whether they do business or not. At best, the partners who are incharge of the business of the firm when the alleged offence was committed, may be liable for that offence and not the other partners who are no way connected with the business of the firm'. 22. That the allegations against the petitioner are vague and baseless, for which the petitioner cannot be prosecuted against and further, that even if the petitioner has not given any public notice as per Section 72 of the Partnership Act, he cannot be prosecuted. The case of Mrs. Meenakshi Sathih v. M/s Southern Petrochemical Industries Corporation: (2008) 1 MWN (Cri) DCC 134 at paragraphs 16 and 17 was relied upon in this respect. 23. Here too, the learned counsel for the petitioner has made a prayer that the related petitions be allowed and all proceedings arising out of the complaints be quashed. 24. Per contra, Mr. Meenakshi Sathih v. M/s Southern Petrochemical Industries Corporation: (2008) 1 MWN (Cri) DCC 134 at paragraphs 16 and 17 was relied upon in this respect. 23. Here too, the learned counsel for the petitioner has made a prayer that the related petitions be allowed and all proceedings arising out of the complaints be quashed. 24. Per contra, Mr. S. Jindal, learned counsel for the respondent No.1 has submitted that reply will be given generally to the common points of contention raised by the petitioner in Crl.Petns. No. 35 to 56 of 2021 and by the petitioner in Crl.Petns. No. 74 to 94 of 2021 and reply will also be directed towards the specific contention of the individual petitioner in the two sets of petitions mentioned above. 25. On reliance by the petitioners in the case of Bhajan Lal (supra) indicating that this Court can rely on the ratio of the said judgment of the Hon'ble Supreme Court, particularly paragraph 102 and the guidelines issued therein, Mr. Jindal has submitted that the import of paragraph 102 is to apply only to cases arising out of police complaints under chapter XIV of the Cr.P.C, whereas private complaints which is the subject matter of the present proceedings are covered by chapter XV of the Cr.P.C and as such, the authority of the Bhajan Lal case would not come to the aid of the petitioners. 26. It is further submitted that in any event, the allegations at paragraphs 8 9 of the complaint petition by the respondent No.1 before the Trial Court do make out a prima facie case. As to the contention that there is no evidence against the petitioners being involved in the alleged offence, the fact that evidence has yet to be led before the Trial Court, the petitioners' reliance on mere submissions or documents before this Court cannot be made the basis to quash the proceedings. The case of State of M.P. v. Awadh Kishore Gupta: (2004) 1 SCC 691 at paragraph 13 was also relied upon by the learned counsel for Respondent No. 1 in this regard. Paragraph 13 reads as follows: '13.... While exercising jurisdiction under Section 482 of the Code, it is not permissible for the Court to act as if it was a trial Judge. Paragraph 13 reads as follows: '13.... While exercising jurisdiction under Section 482 of the Code, it is not permissible for the Court to act as if it was a trial Judge. Even when charge is framed at that stage, the Court has to only prima facie be satisfied about existence of sufficient ground for proceeding against the accused. For that limited purpose, the Court can evaluate material and documents on records but it cannot appreciate evidence...' 27. On the contention that no notice under Section 138 N.I. Act was issued to the petitioners, the learned counsel for the respondent has submitted that Section 138(b) mandates notice to drawer of cheque only and to no other person, the cheques in question were drawn up by the respondent No. 2 Firm and as such, notice has been issued to the said Firm in due compliance with the said provision. On this point, reliance is placed in the case of Krishna Texports Capital Markets Ltd. v. Illa A. Agarwal: (2015) 8 SCC 28 paragraph 15 in which it was held that notice under Section 138 is required to be given to the drawer of the cheque and to no other. 28. Mr. Jindal has again submitted that in addition to Section 138 N.I Act, the complaint petitions was also filed under Sections 141 and 142 of the same Act to indicate that at the time the offence was committed, the petitioner Smti. Sarita Harish Kanchan (accused No. 4) and the petitioner Mr. Mark Alexander Davidson (accused No. 3) along with one Mr. Sachhidanand Kanchan (accused No. 2) were in charge of and were responsible to accused No. 1/respondent No. 2 Firm herein for the conduct of the business of the firm and as such, they are liable to be proceeded against and punished accordingly. Even though the complaint petition does not contain the words 'at the time the offence was committed' however, the words 'were in charge of' would only mean and refer to the time the offence was committed. Even though the complaint petition does not contain the words 'at the time the offence was committed' however, the words 'were in charge of' would only mean and refer to the time the offence was committed. The reliance of the petitioners in the case of S.M.S. Pharmaceuticals Ltd (supra) to contend that the exact same words that have been used by the Hon'ble Supreme Court in the case should also have been used in the complaint petition, is nothing, but an adoption of an unnecessary pedantic approach, which could be answered by reference to the case of Commissioner of Income Tax v. Sun Engineering Works (P) Ltd: (1992) 4 SCC 363 at paragraph 39 wherein it was held that:- '39. .... It is not proper to regard a word, a clause or a sentence occurring in a judgment of the Supreme Court, divorced from its context, as containing a full exposition of the law on a question when the question did not even fall to be answered in the judgment.' 29. Again, the case of K. Pannir Selvam v. MMTC Ltd: 2000 Cri. L.J. 1002 (AP) at paragraph 18 was also referred to by the learned counsel for the respondent No.1 wherein the High Court has observed as follows: - '18. As observed by the Supreme Court in the case of Rajesh Bajaj v. State NTC of Delhi, AIR 1999 SC 1216 : (1999 Cri LJ 1833) in a petition under Section 482 of Cr.P.C. it is not permissible to adopt a strictly hyper technical approach and 'sieve the complaint through a cullendar of finest gauzes for testing the ingredients' of the offence alleged against the accused. As to the whether the person in question was really in-charge of the affairs of the company and was responsible to the affairs of the Company or not, and as to what functions he was assigned in the affairs of the Company and whether those functions could be considered sufficient to hold that he was incharge of the affairs of the company are matters which have to be gone into during the trial. The trial Court will come it its own conclusion on this aspect and the observations in this order shall not be related as finding of fact.' 30. The trial Court will come it its own conclusion on this aspect and the observations in this order shall not be related as finding of fact.' 30. In response to the contention of the petitioner that the complaint petition must aver how and in what manner the accused was guilty and in support thereof, paragraph 25 of the K.K. Ahuja (supra) case was relied upon, the learned counsel for the respondent No. 1 has submitted that the complaint petition is not just under Section 141(1) of the N.I. Act, but also under Section 141(2) of the same, that even should the complaint petition fail under Section 141(2) it cannot fail under Section 141(1). As to which of these two provisions will be attracted shall have to be decided by the Trial Court after evidence has been adduced. The case of S.V. Muzumdar Ors v. Gujarat State Fertilizer Co. Ltd Anr: (2005) 4 SCC 173 , paragraph 8 was referred to in this regard. Paragraph 8 reads as follows:- '8. We find that the prayers before the courts below essentially were to drop the proceedings on the ground that the allegations would not constitute a foundation for action in terms of Section 141 of the Act. These questions have to be adjudicated at the trial. Whether a person is in charge of or is responsible to the company for conduct of business is to be adjudicated on the basis of materials to be placed by the parties. Sub-section (2) of Section 141 is a deeming provision which as noted supra operates in certain specified circumstances. Whether the requirements for the application of the deeming provision exist or not is again a matter for adjudication during trial. Similarly, whether the allegations contained are sufficient to attract culpability is a matter for adjudication at the trial.' 31. The petitioners have also asserted that no offence is made out against them under any of the provisions of the IPC as it does not provide for vicarious liability. Similarly, whether the allegations contained are sufficient to attract culpability is a matter for adjudication at the trial.' 31. The petitioners have also asserted that no offence is made out against them under any of the provisions of the IPC as it does not provide for vicarious liability. The respondent No. 1, though conceding that under the Indian Penal Code (IPC) there is no provision for fastening of vicarious liability, however under the N.I. Act, Section 141 thus provides for it by stating that any offence which may have been committed by a company, every person or director who was in charge of and responsible for the affairs of the company at the relevant time would also be deemed to be guilty of the offence. The case of Maksud Saiyed (supra) paragraph 15 was cited by the learned counsel for the respondent No. 1 to prove this point. 32. Though the authority cited vide the case of Gian Singh v. State of Punjab: (2012) 10 SCC 303 , wherein the inherent power of the High Court under Section 482 Cr.P.C to secure the ends of justice or to prevent abuse of the process of the Court, for which proceedings in a criminal court may be quashed has been reiterated, however with regard to the case in hand the learned counsel for the respondent No. 1 has submitted that the fact that the accused persons in the impugned analogous complaint proceedings have issued cheques amounting to Rs. 30 Lakhs, a further amount of Rs. 66 lakhs is still due to be paid by the accused persons. The attempt of the petitioners herein to wriggle out of the onerous liabilities by raising unsustainable grounds, could itself be termed as an abuse of the process of the Court. 33. Coming to the stand of the petitioner Mr. Mark Alexander Davidson who admittedly was a partner of the respondent No. 2 Firm but has since retired from the said firm vide Retirement Deed dated 01.04. 33. Coming to the stand of the petitioner Mr. Mark Alexander Davidson who admittedly was a partner of the respondent No. 2 Firm but has since retired from the said firm vide Retirement Deed dated 01.04. 2018, that is before the offences were committed, the respondent No. 1 has sought to demolish that stand by contending that the petitioner is technically still a partner of the said Firm, inasmuch as, the relevant provisions of the Indian Partnership Act particularly Section 72 have not been complied with as no public notice has been issued to the effect that the petitioner has ceased to be a partner of the said firm. Under Section 32 (3) of the Indian Partnership Act, a retired partner continues to be liable until public notice of his retirement is given. The case of B. Narashimha Rao v. T. Raghavalu Naidu Company: (2007) SCC Online Mad 404 paragraphs 9 10, wherein the Hon'ble High Court of Madras has held that the mode of giving public notice as provided under Section 72 of the Indian Partnership Act has to be complied with, as regard a partner who has retired or has been expelled was referred to in this regard. 34. The final contention of the learned counsel for the respondent No. 1 is that, this is a case where issue of facts has to be looked into and this Court exercising jurisdiction under Section 482 Cr.P.C may not venture into questions of facts. The case of MMTC Ltd v. Medchl Chemicals and Pharma (P) Ltd: (2002) 1 SCC 234 at paragraph 13 has been cited in this regard. It is therefore prayed that these related petitions may be dismissed as devoid of merits. 35. Ms. I. Lyngwa, learned counsel for the respondents No. 2 3 herein has made a cryptic submission that the submission of the learned counsels for the petitioners herein is also adopted by these respondents. 36. Due consideration is made to the submissions made by the learned counsels for the rival parties and what can be understood is that a series of identical complaints involving the parties herein have been preferred by the respondent No. 1/Complainant basically seeking relief on account of a number of cheques purportedly issued and drawn up by the respondent No. 2/Firm in favour of the respondent No. 1 and which cheques were dishonoured. Hence, a complaint under Section 138 of the Negotiable Instruments Act, 1881 read with Sections 141 and 142 of the same Act, as well as other penal offences under Sections 420, 418, 417, 403, 406 and 409 of the Indian Penal Code was filed before the Additional Deputy Commissioner (Judicial) at Shillong. 37. Before proceeding further a look at Section 482 Cr.P.C would be necessary to come to the see whether the petitioners herein are entitled to approach this Court for relief under the aforesaid provision of law. 38. Section 482 Cr.P.C reads as follows: '482. Saving of inherent powers of High Court. - Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.' 39. From the above, what can be understood is that Section 482 Cr.P.C can be resorted to, to ensure that orders under the code of criminal procedure are given effect to, secondly, to prevent abuse of the process of any Court and thirdly, to secure ends of justice, Court can always take note of any miscarriage of justice and prevent the same by exercising its powers under Section 482 of Cr.P.C. These powers are neither limited nor curtailed by any other provisions of the Code. 40. For the sake of clarity, a reference to the complaint made before the learned Addl. Deputy Commissioner (Judicial), Shillong would reveal that the said complaint was basically one under Section 138 read with Sections 141 142 of the Negotiable Instruments Act, 1881. To this effect, a complaint under Section 200 of the Code of Criminal Procedure was preferred before the said Court. Section 482 Cr.P.C is a non obstante clause which starts with the words '... Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court... To this effect, a complaint under Section 200 of the Code of Criminal Procedure was preferred before the said Court. Section 482 Cr.P.C is a non obstante clause which starts with the words '... Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court... ' In the case of Bhajan Lal (supra), the Hon'ble Supreme Court at paragraph 102 has not confined the observations and guidelines issued therein only to the portion of the Code under chapter XIV, but has referred to the principles of law enunciated by the Court inter alia, as regard the exercise of inherent powers under Section 482 Cr.P.C. On this premise, the objection of the respondent No. 1 that the ratio of the Bhajan Lal case is not applicable to the case in hand cannot be contemplated. 41. Essentially, the moot question to be answered here is whether a prima facie case can be made out to proceed against the petitioners herein in the said complaint proceedings. Efforts have been made by the petitioner Smti. Sarita Harish Kanchan to prove that she is nowhere involved with the affairs of the respondent No. 2 Firm and that her association with the said Partnership Firm is only to the extent that her brother-in-law (respondent No. 3) is a partner of the said Firm. 42. Again, on perusal of the materials on record, including the copy of the complaint petition which was annexed with these petitions, the complaint is basically directed at the respondent No. 2 Firm and the composition of the said Firm can be made out on the basis of a partnership deed, copy of which has been annexed with the complaint. On perusal of the said Partnership Deed, it is noticed that there are essentially three partners, two of whom are Mr. Sachhidanand Kanchan and Mr. Mark Alexander Davidson who are parties in these proceedings. Interestingly, it is seen that another partner of the firm, was not impleaded in the complaint petition. Nowhere, does the name of Smti Sarita Harish Kanchan appears either as a partner or an employee or even an agent or manager of the said partnership firm. 43. In the case of K.K. Ahuja (supra), relied upon by the petitioner at paragraph 9, the Hon'ble Supreme Court also taking note of the case of S.M.S. Pharmaceuticals Ltd. (supra) has held as under:- '9. 43. In the case of K.K. Ahuja (supra), relied upon by the petitioner at paragraph 9, the Hon'ble Supreme Court also taking note of the case of S.M.S. Pharmaceuticals Ltd. (supra) has held as under:- '9. A three-Judge Bench of this Court considered the scope of Section 141 of the Act in SMS Pharma (I) and held that it is necessary to specifically aver in a complaint under Sections 138 and 141 of the Act, that at the time when the offence was committed, the person accused was in charge of, and responsible for the conduct of business of the company and that in the absence of such averment, Section 141 cannot be invoked. This Court held: (SCC pp. 98-99 102-03, paras 10 18) "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 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. 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. 18. To sum up, there is almost unanimous judicial opinion that necessary averments ought to be contained in a complaint before a person can be subjected to criminal process. A liability under Section 141 of the Act is sought to be fastened vicariously on a person connected with a company, the principal accused being the company itself. It is a departure from the rule in criminal law against vicarious liability. A clear case should be spelled out in the complaint against the person sought to be made liable. Section 141 of the Act contains the requirements for making a person liable under the said provision. That the respondent falls within the parameters of Section 141 has to be spelled out. A complaint has to be examined by the Magistrate in the first instance on the basis of averments contained therein. If the Magistrate is satisfied that there are averments which bring the case within Section 141, he would issue the process. We have seen that merely being described as a Director in a company is not sufficient to satisfy the requirement of Section 141. Even a non-Director can be liable under Section 141 of the Act. The averments in the complaint would also serve the purpose that the person sought to be made liable would know what is the case which is alleged against him. This will enable him to meet the case at the trial." (emphasis supplied) 44. To fasten a liability under Section 141 of the N.I. Act, a clear case should be spelled out in the complaint against the person sought to be made liable is what the Hon'ble Supreme Court has held in the case of S.M.S. Pharmaceuticals Ltd. (supra). This will enable him to meet the case at the trial." (emphasis supplied) 44. To fasten a liability under Section 141 of the N.I. Act, a clear case should be spelled out in the complaint against the person sought to be made liable is what the Hon'ble Supreme Court has held in the case of S.M.S. Pharmaceuticals Ltd. (supra). A bald and vague averment made in the complaint would not suffice to compel a person to subject him or herself to criminal prosecution particularly, in cases under Sections 138, 141 142 N.I. Act. The Hon'ble Supreme Court in the case of Maksud Saiyed (supra) at paragraph 15 has referred to the case of Pepsi Foods Ltd Anr. v. Special Judicial Magistrate Ors: (1998) 5 SCC 749 and has held as follows: - '15. This Court in Pepsi Foods Ltd. v. Special Judicial Magistrate: (1998) 5 SCC 749 held as under: (SCC p. 760, para 28) "28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused." The learned Magistrate, in our opinion, shall have kept the said principle in mind.' 45. The learned counsel for the respondent No.1 has cited paragraph 31 of the case of Gunmana Sales Private Limited v. Anu Mehta Ors: (2015) 1 SCC 103 which is reproduced below to contend that even a bald averment can be made to compel an accused to be brought to trial on the basis of a complaint. However, it can be seen that the said observation is made only with respect to a Director who is evidently on record as being a Director of such company or firm as the case may be. '31. When in view of the basic averment process is issued the complaint must proceed against the Directors. But, if any Director wants the process to be quashed by filing a petition under Section 482 of the Code on the ground that only a bald averment is made in the complaint and that he is really not concerned with the issuance of the cheque, he must in order to persuade the High Court to quash the process either furnish some sterling incontrovertible material or acceptable circumstances to substantiate his contention. He must make out a case that making him stand the trial would be an abuse of the process of court. He cannot get the complaint quashed merely on the ground that apart from the basic averment no particulars are given in the complaint about his role, because ordinarily the basic averment would be sufficient to send him to trial and it could be argued that his further role could be brought out in the trial. Quashing of a complaint is a serious matter. Complaint cannot be quashed for the asking. For quashing of a complaint it must be shown that no offence is made out at all against the Director.' 46. As pointed out, the averments made at paragraphs 8 9 of the complaint petition, especially as regard the role of the petitioner (accused No. 4) who is neither a partner or anywhere involved with the affairs of the said Partnership Firm are indeed very general and not specific. In the case of Awadh Kishore Gupta (supra) it was held that '.the Court has to only prima facie be satisfied about existence of sufficient ground for proceeding against the accused. In the case of Awadh Kishore Gupta (supra) it was held that '.the Court has to only prima facie be satisfied about existence of sufficient ground for proceeding against the accused. For that limited purpose, the Court can evaluate material and documents on records but it cannot appreciate evidence..' Evaluation of materials and documents on records can be resorted to which is done so in this case and in the considered opinion of this Court, having taken into consideration the authorities cited by the respondent No. 1, there is prima facie no indication that the petitioner (Smti. Sarita Harish Kanchan) is liable for prosecution on the basis of the said complaint before the learned Addl. Deputy Commissioner (Judicial), Shillong. 47. As to the role of the petitioner Mr. Mark Alexander Davidson, the Partnership Deed has clearly indicated that he is one of the partners of the respondent No. 2 Firm. It is his contention however, that at the time when the alleged offence was committed, that is in the year 2019, he has since retired from the said Firm. Copy of the Deed of Retirement dated 01.04.2018 was annexed with the petition to prove the same. Therefore, this petitioner has maintained that he could not have been involved with the affairs of the said Partnership Firm at the relevant period and as such, could not have been prosecuted in connection with the related complaint. 48. The case of Mrs. Meenakshi Sathih (supra) at paragraphs 16 17 cited by the petitioner has relevance in this context. The same are reproduced as under: '16. The averment found in the Complaint that the Petitioner also was in charge of and responsible for the conduct of the business and the vague allegation that the cheque was issued with her consent and knowledge are not sufficient pleadings to show prima facie that she was responsible for the conduct of the business of the Company. 17. Though the Petitioner could not establish that she not liable for the act of the other Partners of the Firm right from her alleged date of retirement, the Court find that the Petitioner cannot be prosecuted with the aforesaid vague allegations which does not indicate her active role in the business of the Partnership Firm. 17. Though the Petitioner could not establish that she not liable for the act of the other Partners of the Firm right from her alleged date of retirement, the Court find that the Petitioner cannot be prosecuted with the aforesaid vague allegations which does not indicate her active role in the business of the Partnership Firm. A sleeping Partner who had not played any active role in the business of the Partnership Firm cannot be directed to face the criminal liability under Section 138 read with 142 of the Negotiable Instruments Act.' 49. Even if the fact is admitted that the petitioner Mr. Mark Alexander Davidson is a partner in the said Firm and also even if the so called Retirement Deed is not taken into account, that is, that the legal provisions of Section 72 of the Partnership Act was not complied with, as far as the issue of notice is concerned, yet the fact remains that his role in the partnership firm has not been specifically spelt out and saying that he was also incharge of and responsible for the affairs of the said Firm is indeed only a bald averment. As per the authority cited above in the case of S.M.S. Pharmaceuticals Ltd (supra) at paragraph 10, it has been held that '...I Lability depends on the role one plays in the affairs of a company and not on designation or status. ' this means that a definite averment should be made out in the complaint against a person sought to be made liable and again, it is said that the mere fact of being described as a Director in a company is not sufficient to satisfy the requirement of Section 141. 50. The case of K. Pannir Selvam (supra) as well as the case of S.V. Muzumdar (supra) duly taken note of herein placed in juxtaposition with the case of K. K. Ahuja (supra) and S.M.S. Pharmaceuticals Ltd (supra) would led one to understand that even for the adjudicatory process to be initiated on the basis of a complaint, for which evidence is to be led, basically a prima facie case against the person proceeded against is required to be made out in the said complaint. In the case in hand, this has been found wanting. In the case in hand, this has been found wanting. Therefore, this Court is of the respectful opinion that the ratio of the case of K. Pannir Selvam (supra) and S.V. Muzumdar (supra) are not applicable to the present case. 51. In the case of MMTC Ltd (supra) cited by the learned counsel for the respondent No. 1 at paragraph 13, the Hon'ble Supreme Court has held that the inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice. At this stage, the court could not have gone to merits and/or come to a conclusion that there was no existing debt or liability. However, in these proceedings, this Court has not ventured into the realm of merits, but has approached the matter to find out whether there were any prima facie materials on record or not to enable the learned Magistrate to proceed for issuance of summons to the petitioners herein. 52. It is reiterated that the learned Magistrate has proceeded only on the basis of a bald averment in the complaint petitions with no specific details, for example, as to who was the signatory to the cheque, as regard the role of the petitioners. 53. In view of the above observations, this Court hereby finds that the petitioners herein in all these set of related similar and identical petitions have been able to made out a case for exercise of inherent powers under Section 482 Cr.P.C as there has been an abuse of the process of the Court and ends of justice has to be meted out, as far as the impugned proceedings are concerned. 54. Consequently, the proceedings in C.R. Complaint Case Nos. 35 (T) of 2020, 36 (T) of 2020, 37 (T) of 2020, 53 (T) of 2019, 54 (T) of 2019, 55 (T) of 2019, 56 (T) of 2019, 58 (T) of 2019, 59 (T) of 2019, 60 (T) of 2019, 61 (T) of 2019, 66 (T) of 2019, 67 (T) of 2020, 68 (T) of 2020, 69 (T) of 2020, 70 (T) of 2020, 71 (T) of 2020, 73 (T) of 2019, 75 (T) of 2019, 76 (T) of 2019, 77 (T) of 2019 and 78 (T) of 2019 are hereby quashed and summons recalled only to the extent the petitioners herein are concerned. 55. 55. With the above, these petitions are hereby disposed of by this common judgment and order. No cost.