IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL C-482 No. 779 of 2005 Sri Deepak Jain ` …….Applicant. Versus State of Uttaranchal & others ……Respondents. Mr. D.K. Sharma, Advocate for the applicant. Mr. Nandan Arya, learned Assistant Government Advocate for the State of Uttarakhand. Hon’ble Sudhanshu Dhulia, J. Heard learned counsel for the applicant as well as the learned Assistant Government Advocate for the State of Uttarakhand. This Criminal Misc. Application has been filed under Section 482 Cr.P.C. for setting aside the proceedings in Case No. 182 of 2003 Smt. Kiran Chaurasiya Vs. Installment Company Ltd. which has been instituted under Section 138 of the Negotiable Instruments Act, 1881 (from hereinafter referred to as the “Act”). The brief facts of the case are that the complainant Smt. Kiran Chaurasiya was given a cheque of Rs. 50,000/- by a company, namely, Installment Corporation Limited. The cheque was duly deposited in the bank and was subsequently dishonoured. The complainant thereafter gave a notice to the Company and moved a complaint before the learned Judicial Magistrate under Section 138 read with Section 142 (4) of the Act. The learned Judicial Magistrate after proceeding under Section 200 read with Section 202 of Cr.P.C. issued the summons to the accused person i.e. the applicant. It is this proceeding which is presently being challenged by the applicant. One of the grounds taken by the present applicant is that he is only a Director of the Company and is not concerned with day to day affairs of the Company and, therefore, no cognizance was liable to be taken against him under Section 138 of the Act. The other ground taken by the applicant is that under Section 138 of the Act a complaint has to be filed within one month from the date of receipt of the notice. According to the applicant, this period of one month had expired and, therefore, the learned Judicial Magistrate was wrong in taking 2 cognizance, as it was filed beyond the period of limitation. On this score, the averment of the applicant is misconceived inasmuch as firstly it is a matter which has to be seen by the trial court, particularly when the Court has a discretion to condone the delay under Section 142 of the Act. Therefore assuming that there has been delay, it is not for this Court to interfere with the matter under Section 482 Cr.P.C. Moreover, as far as the contention of the learned counsel for the applicant that in an offence being made under Section 138 of the Act a Director of a Company is not liable to be prosecuted, on this score the law is well settled in S.M.S. Pharmaceuticals Ltd. Vs. Neeta Bhalla and another 2005 SCC (Cri) 1975. This is again for the trial court to determine as to whether the applicant was in-charge of the affairs of the Company at the relevant time or not. The onus is on the applicant to prove before the trial court that he was not in charge of the affairs of the Company. Proceeding under Section 482 is not a proper forum where this factual position can be determined. Moreover, what is relevant is, the specific averment in the complaint itself that the accused person was in-charge of the affairs of the company at the relevant period of time. Therefore sufficient complaint is made as far s issuance of summons to the accused is concered. The is what has been stated by the Apex Court in S.M.S. Pharmaceuticals Ltd. Vs. Neeta Bhalla and another 2005 SCC Cri (1975) :- “19. In view of the above discussion, our answers to the questions posed in the reference are as under : (a) It is necessary to specifically aver in a complaint under Section 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 Section 141 and has to be made in a complaint. Without this averment being made in a complaint, the requirements of Section 141 cannot be said to be satisfied.” The complaint has been perused and in the said complaint it has specifically been averred that the accused person was the in-charge of the company at the relevant period of time. 3 This Court therefore finds no infirmity in the proceeding initiated against the applicant under Section 138 of the Act in Criminal Case No. 182 of 2003 Smt. Kiran Chaurasiya Vs. Installment Company Ltd. Consequently, there is no scope for this Court to interfere under Section 482 Cr.P.C. The present C-482 application is therefore liable to be dismissed and is hereby dismissed. No order as to costs. The Registry is directed to send a copy of this order to the court concerned for necessary compliance. (Sudhanshu Dhulia, J.) 25.8.2010 Avneet