Criminal Misc. No.M-7602 of 2008 -1- **** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No.M-7602 of 2008 Date of decision : 10.11.2008 I.M.Vijayan .....Petitioner Versus M/s Prime Impex ...Respondent CORAM : HON'BLE MR. JUSTICE S. D. ANAND Present: Mr. Arun K. Bakshi, Advocate for the petitioner. Mr. Deepak Arora, Advocate for respondent. **** S. D. ANAND, J. The petitioner has applied for quashment of complaint dated 21.2.2007 (Annexure P-3) and also the order dated 21.2.2007 (Annexure P-4) which had been passed by the learned Trial Magistrate directing the summoning of the petitioner to stand trial for an offence under Section 138 of the Negotiable Instruments Act read with Section 420 IPC. It is apparent from a perusal of the impugned complaint (Annexure P-3) that there is no precise allegation in the course thereof that it was the petitioner who signed the impugned cheque. There is also no averment that it was he only who was authorised to manage the affairs of the company. This inference has been culled out after going through the impugned complaint with the assistance of the learned counsel for the parties. In that context, it is neither here nor there for the learned counsel for the petitioner to argue that the general reference (“the accused are the responsible and liable for the acts and conduct of the company”) is enough to nail the petitioner inasmuch as it was he only, who at the relevant point Criminal Misc. No.M-7602 of 2008 -2- **** of time, was managing the affairs of the company. In a prosecution for an offence under Section 138 of the Negotiable Instruments Act, it is the bounden duty of the complainant to prove that the accused had issued a cheque in lieu of a pre-existing liability, that the cheque had bounced for want of sufficiency of funds and that the accused did not pay up even after the statutory notice for making the payment had been served upon him. In the present case, there is not even an averment that the petitioner before this Court was signatory to the impugned cheque and there also is not evidence that it was he only who used to conduct the business on behalf of the company. Apart therefrom, the following facts also require pertinent notice:- There is an averment in the petition that the petitioner resigned as a Director of the Company vide letter dated 5.10.2006 (Annexure P-1). The factum thereof came to be noticed by the Registrar of Companies vide certification dated 10.7.2007.(“Hereby confirmed that the above mentioned Director is not associated with the company with effect from 16.10.2006 (DD/MM/YYYY) due to resignation.”). The impugned cheque is alleged to have been issued on 28.11.2006. In the light of that factual position as well, the liability of the petitioner cannot be upheld as he had ceased to be a Director of the company with effect from 16.10.2006. In the light of the fore-going discussion, it is apparent that allowing complaint to proceed would amount to an abuse of process of Court. The complaint (Annexure P-3) and also the summoning order (Annexure P-4) shall stand quashed. The petition is allowed. November 10, 2008 (S. D. ANAND) Pka JUDGE