ORDER : 1. The petitioners are the accused Nos. 2 & 3 in C.C. No.1103/2016 on the files of the Judicial First Class Magistrate Court, Mattancherry, a case relating to the commission of offence under Section 138 the Negotiable Instruments Act, 1881 (in short ‘NI Act’). They are arraigned in the complaint in their capacities as the Managing Director and Authorised Signatory respectively, of the first accused Co-opearative Society by name ‘The Kaduthuruthy Co-operative Rubber Marketing and Processing Society Limited No.1397’. 2. The complaint was about the dishonour of a cheque for Rs.1,63,800/- issued to the first respondent by the petitioners for and on behalf of the first accused Society towards payment of the amount due to the proprietary firm represented by the first respondent. Originally the complaint was filed before the Judicial First Class Magistrate Court, Vaikom. Later on it was transferred to the Judicial First Class Magistrate Court, Mattancherry, on jurisdictional grounds. 3. In the present petition, the petitioners would contend that they are not liable to be prosecuted for the dishonour of the cheque issued by the first accused Society, since the dishonour happened due to the financial collapse of that Society which was beyond their control. The first petitioner would contend that he was deputed as Managing Director from the Co-operative Department as per a Government Order, while working as Deputy Registrar, and that his services with the first accused Society ended on 31.05.2014. The second petitioner, who was working as Factory Manager of the first accused Society, was said to be on leave without allowance from 01.07.2014 onwards. It is further stated that, at the intervention of this Court as per the directions in about five writ petitions, steps are being taken to sell the properties of the Society for settling the liabilities, and that the amount covered by the cheque involved in this case is also included as part of the liability to be cleared by the Society from its assets proposed to be sold in public auction. Thus, it is contended that the petitioners are no way liable to be prosecuted for the commission of offence under Section 138 of the NI Act in connection with the dishonour of the cheque issued during the course of business of the first accused Society. 4. The State of Kerala was impleaded as additional third respondent vide order dated 30.08.2018. 5. 4. The State of Kerala was impleaded as additional third respondent vide order dated 30.08.2018. 5. The petitioners had filed C.M.P. Nos. 843 & 844/2018 before the learned Magistrate seeking their discharge from the case. The above petitions were dismissed by the learned Magistrate holding that there is no provision to entertain a prayer for discharge in a summons trial. The learned Magistrate also observed that Section 141 of the NI Act cannot be applied at the initial stages of the complaint. 6. Heard the learned counsel for the petitioners, the learned Public Prosecutor representing Additional third respondent and the learned counsel for the first respondent. 7. Section 141 of the NI Act deals with the commission of offence under Section 138 of the said Act by a company. As per Sub-Section (1) of Section 141 of the NI Act, the requirement for fastening a person with criminal liability for the offence committed by a company under Section 138 of the NI Act is that at the time when the offence was committed , such person should be in charge of, and responsible to the company for the conduct of the business of the company. The first proviso to Section 141(1) of the NI Act exonerates the officer or employee of the company from the said offence 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. As per the second proviso, a person nominated as a Director of a company by virtue of his holding any office or employment in the Central Government or the State Government or a Financial Corporation owned or controlled by the Central Government or the State Government, shall not be liable for prosecution for the commission of offence under Section 138 of the NI Act by such company. 8. As far as the present case is concerned, there is absolutely nothing stated in Annexure-A1 complaint filed by the first respondent that the petitioners herein were in charge of, and were responsible to the first accused Society for its conduct of business at the time of commission of the offence. 8. As far as the present case is concerned, there is absolutely nothing stated in Annexure-A1 complaint filed by the first respondent that the petitioners herein were in charge of, and were responsible to the first accused Society for its conduct of business at the time of commission of the offence. Therefore, the primary requirement to fasten the petitioners with criminal liability under Section 138 of the NI Act for the dishonour of the cheque issued by the first accused Society, has not been established by the complainant (first respondent) 9. In Ashok Shewakramani v. State of Andhra Pradesh , 2023 KHC 7037 , the Hon’ble Supreme Court has held in paragraph Nos.19, 20 & 21 of the judgment as follows: 19. S.141 is an exception to the normal rule that there cannot be any vicarious liability when it comes to a penal provision. The vicarious liability is attracted when the ingredients of sub-S.1 of S.141 are satisfied. The Section provides that every person who at the time the offence was committed was in charge of, and was responsible to the Company for the conduct of business of the company, as well as the company shall be deemed to be guilty of the offence under S.138 of the NI Act. In the light of sub-S.1 of S.141, we have perused the averments made in the complaints subject matter of these three appeals. The allegation in paragraph 1 of the complaints is that the appellants are managing the company and are busy with day to day affairs of the company. It is further averred that they are also in charge of the company and are jointly and severally liable for the acts of the accused No.1 company. The requirement of sub-S.1 of S.141 of the NI Act is something different and higher. Every person who is sought to be roped in by virtue of sub-S.1 of S.141 NI Act must be a 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. Merely because somebody is managing the affairs of the company, per se, he does not become in charge of the conduct of the business of the company or the person responsible for the company for the conduct of the business of the company. Merely because somebody is managing the affairs of the company, per se, he does not become in charge of the conduct of the business of the company or the person responsible for the company for the conduct of the business of the company. For example, in a given case, a manager of a company may be managing the business of the company. Only on the ground that he is managing the business of the company, he cannot be roped in based on sub-S.1 of S.141 of the NI Act. The second allegation in the complaint is that the appellants are busy with the day-to-day affairs of the company. This is hardly relevant in the context of sub-S.1 of S.141 of the NI Act. The allegation that they are in charge of the company is neither here nor there and by no stretch of the imagination, on the basis of such averment, one cannot conclude that the allegation of the second respondent is that the appellants were also responsible to the company for the conduct of the business. Only by saying that a person was in charge of the company at the time when the offence was committed is not sufficient to attract sub-S.1 of S.141 of the NI Act. Sub-S.1 of S.141 reads thus: "141. Offences by companies - (1) If the person committing an offence under S.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 deeded 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." 20. On a plain reading, it is apparent that the words "was in charge of" and "was responsible to the company for the conduct of the business of the company" cannot be read disjunctively and the same ought be read conjunctively in view of use of the word "and" in between. 21. Therefore, even by giving a liberal construction to what is averred in paragraph 1 of the complaints, we are unable to accept the submission made by the learned counsel appearing for the second respondent that these averments substantially comply with sub-section (1) of S.141 of the NI Act. 10. Following the aforesaid decision, the Hon’ble Apex Court again held in Ravi Dhingra v. State of NCT of Delhi , 2024 KHC 8577 that, when the complaint lacks the mandatorily required averment to maintain a complaint for the commission of offence under Section 138 of the NI Act, the only option left with the High Court is quashment of those proceedings. Paragraphs Nos.8 & 9 of the aforesaid judgment are extracted hereunder: 8. (7) The law enunciated in the decision in Ashok Shewakramani's case (supra) is that to maintain a complaint and to frame a charge under S.138 of the NI Act, there must be a specific averment against the person concerned that he was in - charge of, and responsible for the company concerned in the matter of conduct of its business. This position is now well settled and is being followed with alacrity. 9. (8) Taking note of the law thus settled by this Court, we have carefully perused the complaints. Though, the learned counsel appearing for the second - respondent in all these cases, took pains to convince us that the complaint concerned carried necessary averments required statutorily to maintain them however, on perusing the said complaints, we have no hesitation to hold that the aforesaid mandatorily required averments to attract an offence under S.138 of the NI Act are conspicuously absent in all the complaint(s). To make the appellant to stand the trial, in such circumstances, would be nothing but abuse of the process of the Court. When that be the position, they are liable to be set aside in the light of Ashok Shewakramani's case (supra). 11. To make the appellant to stand the trial, in such circumstances, would be nothing but abuse of the process of the Court. When that be the position, they are liable to be set aside in the light of Ashok Shewakramani's case (supra). 11. It is clear from the aforesaid decisions of the Hon’ble Apex Court that the requirement to plead in the complaint that the persons being prosecuted were in charge of, and were responsible to the company for the conduct of business of the company at the time of commission of the offence, cannot be watered down by other general and superficial statements to the effect that those persons were managing the affairs of the company. As far as the present case is concerned, there is absolutely no allegation in Annexure-A1 complaint that the petitioners were in charge of and responsible for the conduct of business of the first accused Society. That being so, the prosecution launched against the petitioners, is prima facie unsustainable. Needless to say that the prayer in this petition to quash the proceedings against the petitioners, is perfectly justifiable. 12. In the result, the petition stands allowed as follows: The proceedings against the petitioners (accused No.2 & 3) in C.C. No. 1103/2016 on the files of the Judicial First Class Magistrate Court, Mattancherry, which arose out of Annexure-A1 complaint, are hereby quashed.