Rumi Kumari Phukan, J.

1. Heard Mr. A.K. Gupta, learned counsel for the accused petitioner and Mr. D. Saikia, learned counsel for the respondent No. 1 and Mr. T.K. Mishra, learned Addl. P.P. Assam. The present application has been filed U/S 482 CrPC challenging the order dated 17.9.2011 passed by the learned SDJM Sadar Dibrugarh in case No. 528C/10 taking cognizance of the offence U/S 138 of the NI Act and also the 7.6.2012 passed by learned Sessions Judge Dib in criminal revision No. 57(4)/2011 upholding the above order of taking cognizance by the learned SDJM.

2. Necessary fact in nutshell is that petitioner is working as Branch Manager at Nagaon Branch of Basil International Ltd. The Respondent No. 1 Indreswar Gogoi lodged a complaint against the Branch Manager, M/s. Bansi Export Limited now renamed as M/s. Basil International Limited (as accused No. 1) and the two authorized signatories of cheque of the company U/S 138 of N.I. Act. It is stated that accused No. 1 has been carrying on business of investment and deposits under the company under the name and style Bhamashi Export Limited. Complainant fix deposited Rs. 50,000/- vide money receipt No. 1507525 and Rs. 50,000/- vide Money receipt No. 1507526 with the company on 27.9.2003 for a period of six years. On maturity the complainant/respondent demanded the maturity amount of Rs. 1 lac. The accused No. 1 delivered two numbers of cheques bearing cheque No. 510469 dated 27.8.2010 for Rs. 50,000/-. The respondent deposited the said cheque in his bank for encashment but both the cheques were dishonoured. After complying the procedure of sending notice of demand etc the respondent has lodged the complaint, whereupon learned trial Court took cognizance against all the three accused named in the complaint petition and issued process.

3. Challenging the aforesaid order of cognizance the petitioner preferred a revision and the leaned Revisional Court by referring to Section 141 NI Act held that since the present petitioner as a Branch Manager and representative of the company, was in charge of the Company at the relevant point of time he can also be prosecuted in view of Section 141 NI Act and he can prove his innocence in the trial by defence evidence but not at the time of taking cognizance. The mere fact that the petitioner is not the signatory of the cheque cannot exonerate him from the liability as Manager and accordingly it was held that there is no irregularity in taking cognizance by the Court.

4. The present petition has been preferred as against the aforesaid order of both the Courts.

5. I have considered the submissions of learned counsel for both the parties.

6. According to the learned counsel for the respondent No. 1 the petitioner was the Branch Manager of the Company at the relevant point of time and as such he was responsible for the company as well as issuance of cheque on behalf of the company and the fact that he was not liable for issuance of the cheques and the affairs of the company, can only be proved during the course of trial and the complaint cannot be quashed on the said ground. In this context petitioner has referred to the decision of 2005 Cr.L.J. 2566 (1) S.V. Mazumdar & Ors. v. Gujarat State Fertiliser Company Ltd., 2010 Cr.L.J 1907 National Small Industries Corporation Ltd. v. Harmeet Singh Paintal & Ors.

7. On the other hand, learned counsel for the petitioner by referring to the averments made in the complaint petition as well as the communication made by the concerned Bank, has submitted that a bare perusal of the complaint would reflect that the petitioner herein simply delivered the cheque that was prepared by the company and cheque was not drawn by him. Moreover, there is nothing to show that he was liable/responsible for the affairs of the company. Moreso, the aforesaid company was not made a party to the compliant which is another lacuna as, in absence of the parents company any other persons working under the company cannot be held liab