1) Heard both the Criminal Applications finally. No notice to respondent No.1 – Credit Co.op. society.

2) The applicant has questioned process under Section 138 of the Negotiable Instruments Act (for short, the Act) dated 17.10.2007 issued by learned Judicial Magistrate First Class, Bhusawal in both the cases.

3) The applicant has not resorted to the available remedy of revision before the learned District Judge.

4) The respondent No.1 – Dhanvantari Urban Co-op. Credit Society Ltd., Bhusawal had invested an amount of Rs.1,55,00,000/-with Vyankat Urban Credit Co.op. Society Ltd. (for short, Vyankat society) on 27th March, 2006. The deposit was to accrue interest @ 10.5%. An advance cheque in respect of said deposit and also accrued interest of Rs.11,43,756/-was issued by the applicant – Ritesh on 28.3.2006 in the capacity as Chairman of Vyankaresh society.

5) After expiry of period of the deposit, the said cheques were deposited in Jalgaon Janata Co-operative Society Ltd., Branch Bhusawal for encashment. Both the cheques were dishonoured with endorsement "Refer to drawer, funds insufficient". This was followed with statutory notice. However, it was not accepted and returned as "not claimed" on 22.8.2007. Hence, complaint, petition, and as stated above, issuance of the process.

6) The bone of contention of Mr. Salunke, the learned Counsel for the applicant, is, on 4.4.2006, and 25.5.2006 the applicant has resigned from the post of Chairman and Director respectively of the Vyankat society. New elections were held and thereafter, by notification in local newspaper dated 12.6.2006 (notice dated 10.6.2006), the names of new office-bearers and Directors of Vyankaresh society are informed to the public and consequently, no liability could be saddled upon the applicant – Ritesh. On 17.10.2007, which is the date of the verification, the applicant was not Chairman of the society. The transaction was with the Vyankat society and it is not arrayed as accused. Consequently, no cause of action arose.

7) Learned Counsel for the applicant has placed reliance to the following judgments:

(a) Aneeta Hada Vs. Godfather Travels & Tours pvt. Ltd. -2003 (2) Bom.C.R.(Cri.) 24 (S.C.): 2012 (5) SCC 661;

(b) P.C.Agarwala Vs. Payment of Wages Inspector, M.P. And Ors. AIR -2006 SC 3576;

(c) Judgment of the learned Single Judge of this Court in group of writ petitions, one of the petition being WP No.5223/2009 (decided on 22nd December, 2010)

8) The learned Counsel has also canvassed, in the light of definition of `officer' under Section 2(20) of the Maharashtra Co-operative Societies Act, 1960, there cannot be vesting/fastening of responsibility upon the applicant.

9) Basically, the subject complaint under Section 138 of the Negotiable Instruments Act, is filed against Vyankat society, through an authorized signatory – Ritesh Deorao Patil, Chairman of the Vyankat society. The accused No.2 – is Abhay Jayant Shravage, Manager of Vyankat society, consequently, it cannot be said that society is not prosecuted.

10) The Three-Judges matter of Aneeta Hada (cited supra), conceived the situation, where, a company/society is not arrayed as accused in terms of Section 138 or 141 of the Act. In that event, it was held, -

"liability of Director flows necessarily from the company. Company is a juristic person and in the absence of company arrayed as accused, there could not be a liability solely fastened against the Director. The text of the complaint is narrated herein before. In unequivocal terms, Vyankat society is arrayed as accused. The name of the applicant is also referred as accused and as authorized signatory. Applicant was a drawer of the cheques.

11) The applicant's resignation subsequent to issuance of the cheque will not dilute primary liability to answer as drawer of the cheque issued in favour of the payee in discharge of legally enforceable liability. The verification, to which reference is given, cannot be faulted as there could not be any comm