JUDGMENT S.B. SINHA, J.

1. Leave granted.

2. What would be the effect of a post dated cheque vis-`-vis prosecution in terms of Section 141 of the Negotiable Instruments Act, 1881 (in short the Act) is the question involved in this appeal which arises out of a judgment and order dated 31st January, 2007 passed by the High Court of Delhi at New Delhi in Criminal Revision No. 777 of 2003 dismissing the Criminal Revision Application preferred from an order dated 5th July, 2003 passed by the learned Additional Sessions Judge, New Delhi, discharging the 1st respondent No.1 herein.

3. The basic fact of the matter is not in dispute.

First Respondent herein was a Director of a Company known as M/s. International Agro Allied Products Ltd. (the Company). It had purchased certain agricultural equipments on hire purchase/lease from on 3rd April, 1995. As a part of the said transaction some post dated cheques were issued in favour of the appellant herein towards the payment of monthly hire/rental. First Respondent admittedly resigned from the Directorship of the Company on or about 25th May, 1996. It was accepted.

4. One of the said post dated cheques which was issued in April, 1995 was dated 28th January, 1998 amounting to Rs.2,01,298/-, when presented to the bank by the appellant for encashment, was dishonoured. Pursuant thereto a notice for payment was issued. Amount having not been paid despite service of notice, a complaint petition was filed under Section 138 of the Act. It was inter alia averred therein :-

"8. That on assurance of the accused persons cheque No.0644739 dated 28th January, 1998 for a sum of Rs.2,01,298/- drawn on Bank of Baroda, Lucknow and delivered/issued by the accused towards payment of hire/lease rentals, were presented for encashment again by complainant company through their bankers and the same was returned unpaid by the bankers of the accused vide memo dated 22.6.1998 with the remarks "Insufficient Funds" to the bankers of complainant company. The complainant received the information only on 21.6.1998. (sic) (Copy of memo of cheque returned and above referred cheque are annexed herewith.).

9. That the complainant company sent a legal notice to the accused persons through its advocate on 6th July, 1998, demanding the payment against these cheques within 15 days from the receipt of the notice. This notice was sent to the accused persons both through registered AD & UPC within 15 days from the date of receiving the information regarding dishonouring of the cheques.

10. That the accused persons failed to make the payment of the above said amount despite service of legal notice on him.

13. That the accused No.1 is a ccompany/firm and accused No. 2 to 10 were in charge and were responsible to the accused No.1, at the time when offence was committed. Hence, the accused Nos. 2 to 10 in addition to the accused No.1 are liable to be prosecuted and punished in accordance with law by this Honble Court, as provided by section 141 of the N.I. Act, 1881. Further the offence has been committed by the accused No.1 with the consent and connivance of the accused Nos. 2 to 10."

5. No allegation was made in the complaint petition that the 1st respondent was a signatory to the cheque or he was authorized therefor.

6. An application was filed by the 1st respondent for his discharge. By reason of the order dated 5th July, 2003 the same was allowed by the learned Additional Sessions Judge, New Delhi, stating :-

"....It is a well-known fact that the Constitution of the Board of Directors of a company keeps on changing and a fixed ration of the directors of the company keep on retiring by rotation every year and new directors are inducted. The complainant cannot make directors of the year 1995 or 1996 as the accused person for a cheque dishonoured in the year 1998. He can make accused only those directors who were the directors of the company in the year 1998. The Companies Act has made specific provisions for all companies registered w