The liability of a person under Sec. 138 and Sec. 141 of the Negotiable Instruments Act is based on their role in the commission of the offence, and the burden of proof lies with the accused to establish their defense.

D. H. Waghela, J. : This petition moved under Sec. 482 of the Criminal Procedure Code, 1973 (`the CrPC' for short) prays quashing of the Criminal Complaint No. 6690 of 1997 pending in the Court of the learned Judicial Magistrate, First Class, Pardi. The said complaint alleges against the accused, a company and the present petitioner, the offence under Sec. 138 read with Sec. 141 of the Negotiable Instruments Act, 1881 (`the Act' for short). The earlier attempt of the petitioner at discharge through the application at Exh. 13 has failed, by virtue of the order dated 3.1.2002 of the learned Judicial Magistrate, First Class, Pardi.

2. The prima facie record of facts as revealed in the aforesaid order below Exh. 13 and about which there is no controversy at this stage is such that the petitioner had drawn three cheques dated 30.7.1997, 31.8.1997 and 6.9.1997 in favour of the complainant and the same were dishonoured on account of the payment having been stopped by the drawer. Therefore, the complaint was filed after service of the demand notice dated 12.11.1997. It was the case of the petitioner that he had retired as Director of the accused No.1 Company and that he was implicated as the Director of the drawer Company; but he was not in charge of or responsible to the Company for the conduct of its business at the time the offence was committed. It was contended that, due to internal disputes within their Company, he was prevented from attending to the affairs of the Company from the second week of October, 1997. The cheques were dishonoured by the bank on 19.10.1997 on the ground of the payment having been stopped by the drawer. The petitioner had sought to resign by his letter dated 27.10.1997. Even that resignation letter at Annexure-E to the petition stated that he should be taken as having retired with effect from 5.11.1997.

3. Elaborating her arguments on the above facts, the learned Counsel for the petitioner submitted that, as laid down by the Supreme Court in K. Bhaskaran vs. Shankaran Vaidhyan Balan, AIR 1990 SC 3762, the offence under Sec. 138 of the Act can be completed only with the concatenation of a number of acts which includes failure of the drawer to make payment within 15 days of the receipt of the notice. It was, on that basis submitted that in the facts of the present case, at the time the statutory notice was received and 15 days thereafter had expired, the petitioner was no longer on the board of Directors of the Company as he had already retired or been removed from the Company. It was accordingly argued that at the time some of the essential events to constitute the offence had happened, or, in other words, on the date when the offence can be said to have been completed, the petitioner was neither in charge of the accused Company, nor a Director of it.

3.1 The learned Counsel also relied upon the judgment of the Supreme Court in K. P. G. Nair vs. Jindal Menthol India Ltd., 2000 (6) Scale 578, to submit that the allegation in the complaint that the accused was in charge of and was responsible to the accused Company for the conduct of its business was essential ; and, in absence thereof, he was entitled to be discharged. The K. P. G. Nair's case (Supra), and its ratio are evidently based upon a different factual premise in which the petitioner had not himself signed the cheque and he was sought to be prosecuted as he happened to be the Director of the accused Company at one point of time. Similarly, the judgment of this Court in Alka N. Shah vs. State of Gujarat, 2001 (2) GLR 1023, relied upon by the petitioner, is on such different foundation of facts in which cheques were dishonoured and demand notice was served in November and December, 1999 whereas the applicant had resigned both as Director and Managing Director of the Company as early as in January, 1999.

3.2. The petitioner's contentions were based upon the premise that he was implicated in his capacity of the erstwhile Chairman/Director of t