ORDER :

This petition is filed with a prayer to quash the complaint and taking of cognizance and issuance of summons against the petitioner herein, who is arrayed as an accused in C.C.No.1717/2016 on the file of the Prl. Civil Judge (Jr. Dn.) and JMFC, Ballari, for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881, (for short ‘the Act’).

2. Heard Shri Ganapathi M.Bhat, learned counsel for the petitioner and Shri Gopalkrishna R.Kolli, learned counsel appearing for the respondent.

3. Respondent filed a private complaint alleging that accused No.1 is a private limited Company and accused Nos.2 and 4 are the Directors of accused No.1. For the development of their business and on behalf of accused No.1, they requested a hand loan from the complainant in a sum of Rs.9,50,000/-. The said hand loan was advanced and paid to accused No.2, for and on behalf of accused No.1, through complainant’s HDFC Bank account to the Axis Bank account maintained by the Company at Bengaluru branch. The sum was transferred on 28.10.2013. The accused persons promised that the said amount would be repaid within 1½ years. However, when the complainant demanded the said amount from accused No.1, a cheque bearing No.868474 dated 17.04.2015 pertaining to Punjab National Bank, Hudson Circle branch, Bengaluru, was handed over to the complainant and when the said cheque was presented through his banker HDFC Bank, Ballari, the same was dishonoured on 17.04.2015 with a shara “Exceeds Arrangement”. Thereafter, the complainant got issued a notice to all the accused on 30.04.2015. The notices sent under the Registered Post Acknowledgement Due was served on accused Nos.1, 2 and 4 and even after receipt of the demand legal notice, they failed to give any reply nor paid the cheque amount. As such, they committed an offence punishable under Section 138 of the Act.

4. The petitioner shown as accused No.4 and 5 is stated to be one of the Directors of the accused No.1-Company. Accused Nos.2 and 3 and accused Nos.4 and 5 are one and the same but they are arraigned as accused by showing different addresses.

5. Learned counsel for the petitioner has placed reliance on a judgment of the Hon’ble Supreme Court in the case of S.M.S.PHARMACEUTICAL LTD., VS. NEETA BHALLA reported in SCC 2007 (4) 70 and contended that a Director of a Company shall not automatically be liable for commission of an offence on behalf of a Company. He submits that there are no averments in the complaint to show that the petitioner who is sought to be proceeded against on the premise of his being vicariously liable for commission of an offence by the Company was incharge and responsible to the Company for the conduct of its business. He contends that the petitioner is falsely implicated on the ground that she is the wife of accused No.2, who according to the complainant, issued the cheque being in the position of Managing Director. He submits that the petitioner is not involved in day to day activities or business of the Company.

6. Learned counsel for the respondent has fairly admitted that the petitioner is only a Director and there is no averments in the complaint that she is involved in day to day activities or business of the Company.

7. The complaint does not disclose any averments which shows that the petitioner was incharge of the conduct of the business of the Company except stating that she was one of the Directors of the Company. In the judgment cited supra, the Hon’ble Apex Court has held that Section 141 of the Act does not say that a Director of a Company shall automatically be vicariously liable for commission of an offence on behalf of the Company. What is necessary is that sufficient averments should be made to show that the person who is sought to be proceeded against on the premise of his being vicariously liable for commission of an offence by the Company, must be incharge and shall also be responsible to the Company for the conduct of its business.

8. On a plain r