ORDER :

S.H. Vora, J.

1. By way of this application under Articles 226 and 227 of the Constitution of India read with section 482 of the Code of Criminal Procedure Code, the applicant - accused no. 3 has prayed to quash and set aside the complaint being Criminal Case No. 2548 of 2019 pending before the learned Judicial Magistrate, Ahmedabad (Rural) qua the applicant.

2. Briefly stated, the applicant seeks to challenge legality, validity and propriety of afore-mentioned criminal case filed under section 138 of the Negotiable Instruments Act, 1881 (for short 'the N.I. Act.'). According to the applicant, the applicant is neither signatory nor drawer of the cheque in question and the applicant being partner of partnership firm viz. Mega Trading Corporation cannot be dragged into impugned proceedings, in view of law laid down by the Hon'ble Apex Court in the case of Aparna A. Shah v/s. Sheth Developers Pvt. Ltd. reported in LAW (SC) 2013 (1) 18 rendered in Criminal Appeal No. 813 of 2013. In support of factual submissions, learned advocate Mr. R.C. Jani for the applicant has drawn attention of the Court towards averments made in para 4 and 5 of the complaint.

3. Before the matter is considered on its merits, it is worthwhile to reproduce the observations made by the Hon'ble Apex Court in the case of Pooja Ravinder Devidasani v/s. State of Maharashtra reported in (2014) 16 SCC 1, more particularly, para 18 to 23, which reads as under:-

"18. In Girdhari Lal Gupta Vs. D.H. Mehta & Anr. (1971) 3 SCC 189, this Court observed that a person 'in charge of a business' means that the person should be in overall control of the day to day business of the Company.

19. A Director of a Company is liable to be convicted for an offence committed by the Company if he/she was in charge of and was responsible to the Company for the conduct of its business or if it is proved that the offence was committed with the consent or connivance of, or was attributable to any negligence on the part of the Director concerned [See: State of Karnataka Vs. Pratap Chand & Ors. (1981) 2 SCC 335].

20. In other words, the law laid down by this Court is that for making a Director of a Company liable for the offences committed by the Company under Section 141 of the N.I. Act, there must be specific averments against the Director showing as to how and in what manner the Director was responsible for the conduct of the business of the Company.

21. In Sabitha Ramamurthy & Anr. Vs. R.B.S. Channbasavaradhya (2006) 10 SCC 581, it was held by this Court that it is not necessary for the complainant to specifically reproduce the wordings of the section but what is required is a clear statement of fact so as to enable the court to arrive at a prima facie opinion that the accused is vicariously liable.

[pic] Section 141 raises a legal fiction. By reason of the said provision, a person although is not personally liable for commission of such an offence would be vicariously liable therefor. Such vicarious liability can be inferred so far as a company registered or incorporated under the Companies Act, 1956 is concerned only if the requisite statements, which are required to be averred in the complaint petition, are made so as to make the accused therein vicariously liable for the offence committed by the company. By verbatim reproducing the wording of the Section without a clear statement of fact supported by proper evidence, so as to make the accused vicariously liable, is a ground for quashing proceedings initiated against such person under Section 141 of the N.I. Act.

22. As held by this Court in Pepsi Foods Ltd. & Anr. Vs. Special Judicial Magistrate & Ors. (1998) 5 SCC 343, summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations m