M. Satyanarayana Murthy, J.

This petition is filed under section 482 of the Criminal Procedure Code, 1973 to quash the proceedings in C.C. No. 339 of 2017 pending on the file of II Additional Judicial First Class Magistrate, Nuzvid, Krishna District, for the offence punishable under section 138 of the Negotiable Instruments Act (for short 'the Act') on the ground that the petitioner/A3 is not the signatory to the cheque.

2. The 2nd respondent filed a private complaint alleging that the petitioner entered into development agreement and received Rs. 3,22,785/-, as advance, for development. But A1 represented by its Managing Director failed to perform the obligation under the Development Agreement and upon insisting, A1 issued cheque bearing No. 238176 on 30.09.2016 for Rs,3,22,785/- drawn on Dena Bank, Deccan, Gymkhana Branch, Pune in favour of the 2nd respondent, signed by A2, being authorised signatory of A1 and A2 and A3 have dealt with the transactions of the complainant. On presentation of the said cheque for collection, it was returned with cheque return memo dated 28.11.2016 and immediately, the 2nd respondent got issued a notice strictly complying with the requirement under Clause (b) of proviso to Section 138 of the Act and the said notice was received. The accused had neither paid the amount nor issued any reply.

3. The main contention raised before this Court by the petitioner is that he is not a drawer or maker of the cheque as defined under Section 7 of the Act and thereby, he cannot be made liable for the offence punishable under the Act.

4. Learned counsel for the petitioner reiterated the contentions raised in the petition by placing reliance on judgment of this Court in Narendra Kurangi and others v. Greenmind India Agritech (P) Ltd., Hyderabad and another 2016 (1) ALD(Cri) 177 in support of his contention.

5. This Court ordered notice to the 2nd respondent, proof of service is filed, but none appeared on behalf of the 2nd respondent. Therefore, this Court has no other option except to pass orders on merits.

6. As per the allegations made in the compliant, the cheque was issued by A1 company registered under the Companies Act and represented by its authorised signatory Sudher Darode (A2). According to the admission made in para 7 of the complaint, A3/petitioner-Anand Jog is not a maker or drawer of the cheque. But the only allegation made against this petitioner is that the petitioner/A3 also dealt with the transaction of the complainant. Mere making such an allegation that A3 also dealt with the transaction, no liability can be saddled against this petitioner/A3, not being a drawer or maker of the cheque. The offence under Section 138 of the Act would attract criminal liability only against the drawer of the cheque, not against the third party and filing of complaint and issue of summons to this petitioner is illegal. Even the language used in Section 138 of the Act clearly indicates that only the drawer or maker of the cheque is liable for prosecution the subject to the exceptions contained under Section 141 of the Act.

7. In Aneeta Hada v. M/S Godfather Travels & Tours AIR 2012 SC 2795 the Apex Court held that Section 141 of the Act clearly stipulates that when a person, which is a company, commits an offence, then certain categories of persons in charge, as well as the company would be deemed to be liable for the offences under Section 138. Thus, the statutory intendment is absolutely plain. As is perceptible, the provision makes the functionaries and the companies to be liable and that is by deeming fiction. The words 'every person at the time offence was committed' used in Section 141(1) are not without significance and the same indicates the criminal liability on the date of offence, alleged to have been committed and unless a specific averment was made in the complaint that at the time, when the offence was committed, the person accused was in charge of and responsible for the conduct of the busine