SANJAY PRIYA, J.:–This application under Section 482 of the Code of Criminal Procedure has been filed for quashing the order dated 15.03.2013 passed by the Chief Judicial Magistrate, Bhabhua, Kaimur, in Complaint Case No.1000 of 2012 by which the learned Magistrate after holding enquiry has found prima facie case against the petitioner and others for the offence under Section(s) 406 and 420 Indian Penal Code.

2. Prosecution case as per the Complaint Petition, in brief, is that the accused persons including the petitioner were known to the complainant. They came to the house of the complainant and made request to give him rupees fifty lacs as they have opened one institution in the name of Fine Indisales Pvt. Ltd. They told the complainant that they require rupees fifty lacs for the aforesaid institution and they will return the money within six months. The complainant gave rupees fifty lacs to the accused on 06.01.2012. After six months, the complainant made demand. The accused persons gave two cheques dated 08.06.2012 for rupees twenty five lacs each drawn on ICICI Bank, Kanpur Branch. The complainant deposited both the cheques in his account in the State Bank of India, Chainpur. The complainant learnt on 16.07.2012 that both cheques have bounced because there was no fund in the account of the accused persons. The complainant went to enquire from the accused persons then they refused to return money. They also said that there is no proof of making payment of the aforesaid amount by the complainant to the accused persons. It has been alleged that intention of the accused was bad from very beginning.

3. During enquiry, complainant was examined on Solemn Affirmation. Besides complainant, two other witnesses were also examined, namely, Diwan Islam Khan (EW 1) and Babar Khan (EW 2). The learned Magistrate after holding enquiry has found prima facie case against this petitioner and others for the offence under Section(s) 406 and 420 Indian Penal Code. As per the complaint, this petitioner was Director of the aforesaid company. Xerox copy of the two cheques, which were bounced, dated 08.06.2012, has been annexed as Annexure-6 series. It is mentioned in the Return Memo of the bank that fund was insufficient and the account had been frozen.

4. Heard learned counsel for the Petitioner and the State as well as counsel for the Opposite Party No.2.

5. It has been submitted on behalf of the petitioner that there is no proof of making payment of rupees fifty lacs by the complainant to the accused.

6. Learned counsel for the petitioner has further argued that prosecution against Director or authorized signatory of the cheque without arraying the company as an accused is not maintainable. He has relied on the judgments of the Hon’ble Supreme Court in the case of Aneeta Hada Vs. Godfather Travels & Tour (P) Ltd. reported in (2012) 5 Supreme Court Cases 661 as well as in the case of Sunil Bharti Mittal Vs. Central Bureau of Investigation reported in (2015) 4 Supreme Court Cases 609 in support of his submission. Learned counsel for the petitioner after relying on the judgment in the case of Sunil Bharti Mittal Vs. Central Bureau of Investigation (supra) has argued that the Magistrate issuing process under Section 204 Cr. P. C. against the Director without ascribing any incriminating role to him, but solely on the basis that their companies were accused and they being the alter ego were vicariously liable without invoking any applicable statutory scheme regarding vicarious liability is unsustainable. Freedom of Magistrate is, however, to exercise power under Section 319 Cr. P. C., if warranted by the facts.

7. Similarly, counsel for the petitioner has relied on the decision of the Supreme Court in the case of Harshendra Kumar D. Vs. Rebatilata Koley reported in (2011) 3 Supreme Court Cases 351 and has argued that ex-Director cannot be made accountable and fastened with liability for anything done by company after accepting his resignation by the compa

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