JUDGMENT - Dr. E.S. DA SILVA, J.:-This application is directed against the order of the learned J.M.F.C., Panaji, dated 18th August, 1993 in Criminal Case No. N.C. 65/93/B whereby the learned Magistrate after conducting the verification of the complaint in the aforesaid criminal case issued process against the petitioner and others for offence under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the Act).

2. The facts of the case are that the petitioner as one of the authorised signatories of the Company M/s. Goa Plast Pvt. Ltd., had signed four cheques favouring the respondent, all allegedly dated 15th July, 1992, being three for the sum of Rs. 2,00,000/- each bearing Nos. 245964, 245965 and 245966 and the fourth for an amount of Rs. 2,52,809.76 bearing No. 245967. All the cheques were drawn on Goa Urban Co-operative Bank, Panaji. It is the case of the respondent No. 1 that the petitioner was one of the in charge of the Company and responsible jointly and severally to the said company for the conduct of its business at the relevant time. Thereupon as per the instructions given to the respondent by the petitioner and the others the cheques were presented for clearance with the Co-operative Bank at Panaji on 8th January, 1993. The Co-operative Bank by its letter dated 8th January, 1993 informed the resopondent that they were unable to honour the cheques. A lawyers notice dated 19th January, 1993 was therefore, issued to the petitioner and the other accused, in the complaint and it was duly received by them. Their attention was drawn to section 138 of the Negotiable Instruments Act and the accused including the petitioner were called upon to pay the said amount within 15 days of the notice. All the accused including the petitioner failed to pay the amount within 15 days of the receipt of the notice. However by letter dated 2nd Febraury, 1993 the petitioners advocate alleged that no question of compliance with the notice would arise as far as the business is concerned. According to the respondent the letter does not disclose any valid and lawful reason for non-compliance of the notice. Since the petitioner and the other accused also failed to pay to him the amount within 15 days of the receipt of the notice, the respondent was compelled to file a complaint.

3. Shri Kantak, the learned Counsel appearing for the petitioner, has invited my attention to the provisions of sections 141 and 138 of the Act. Section 141 which refers to offences by companies reads as follows :-

"141. Offences by companies.--(1) If the person committing an offence under section 138 is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly :

Provided that nothing contained in this sub-section shall render any person liable to punishment if he proves that the offence was committed without his knowledge, or that he had exercised all due diligence to prevent the commission of such offence.

(2) Notwithstanding anything contained in sub-section (1), where any offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly."

The learned Counsel then submitted that in view of this provision it is clear that only a person who was in charge and responsible to the company for the conduct of the business of the company at the time of the commission of the offence could be deemed as guilty of the offence and liable to be proceeded agains

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