ORDER :

1. Criminal Miscellaneous Application No.532 of 2018 has been filed under Section 482 of the Code of Criminal Procedure, 1973 for quashing and setting aside the Criminal Case bearing No.4674 of 2017 pending in the Court of the learned Chief Judicial Magistrate, Rajkot and/or the proceedings initiated in pursuant thereto.

2. Criminal Miscellaneous Application No.4488 of 2018 has been filed under Section 482 of the Code of Criminal Procedure, 1973 for quashing and setting aside the Criminal Case bearing No.4809 of 2017 pending in the Court of the learned Additional chief Judicial Magistrate, Surat and/or the proceedings initiated in pursuant thereto.

3. In both the applications, learned Advocate Mr. H.N. Sevak appeared for the applicants and submitted that though the applicants are the Directors of the Company but are not responsible for the day to day management of the Company. The said fact has not been averred by the complainant and thus, it is submitted that no cognizance can be taken of the complaint for issuance of summons.

4. Learned Advocate for the applicants submitted that specific averments are required to be made by the complainant in his complaint that the Director of the Company is responsible for the day to day affairs and hence, it is submitted that merely because the applicants are the Directors of the Company, the applicants would not be liable to be prosecuted under Section 141 of the Negotiable Instruments Act, 1881 (hereinafter referred to in short as ‘the N.I. Act’). It is further submitted that the persons who are sought to be made liable should be managing the business of the Company, or signatory of the cheque can be made liable under Section 138 read with Section 141 of the N.I. Act. Thus, it is submitted that the applicants would not be liable only by a cursory statement being made that the applicants are the Directors of the Company.

5. Learned Advocate for the applicants Mr. H.N. Sevak has relied on the following decisions of the Hon’ble Apex Court for quashing of the proceedings :-

(i) Sunita Palita v. Panchami Stone Quarry reported in 2022 10 SCC 152 and

(ii) S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla reported in 2005 8 SCC 89.

6. While countering the above arguments of learned Advocate Mr. H.N. Sevak, learned Advocate Mr. Bhavin S. Raiyani appearing for the respondent No.2 in Criminal Miscellaneous Application No.532 of 2018 and learned Advocate Mr. Kunal S. Shah for the respondent No.2 in Criminal Miscellaneous Application No.4488 of 2018 submitted that while considering the case under Section 138 read with Section 141 of the N.I. Act, the complaint as a whole is required to be read and decided whether the applicants as Director of the Company were Incharge of the day to day business of the Company. Further, reliance has been placed on the judgment of the Hon’ble Apex Court in the case of S.P. Mani and Mohan Diary v. Dr. Snehalatha Elangovan reported in 2022 LawSuit (SC) 1106 and submitted that the Apex Court while summarizing the final conclusion has stated that while facing the criminal liability, there is no legal requirement for the complainant to show that the accused being a Partner of the firm was aware about each and every transaction. Learned Advocates submitted that in accordance with first proviso to sub-section (1) of Section 141 of the N.I. Act, if the accused would be able to prove to the satisfaction of the Court that the offence was committed without his/her knowledge or he/she had exercised due diligence to prevent commission of such offences, he/she will not be liable for punishment. The complainant is supposed to know only generally as to who were the in-charge of the affairs of the Company or firm, as the case may be.

7. In the above case of S.P. Mani (supra), the Hon’ble Apex Court has laid down the final conclusion in Paragraph 47 which is reproduced as under :-

“[47] Our final conclusions may be summarised as under :-

a.) The primary responsibility of the complainant is to ma