JUDGMENT :

Heard Mr. P.J. Saikia, Sr. Advocate, assisted by Mr. K. Baruah, learned counsel for the petitioner and also heard Mr. D.K. Kothari, learned counsel for the respondent.

2. In this criminal petition, under section 482 Code of Criminal Procedure, the petitioner has challenged the legality, propriety and correctness of the order dated 20.04.2018, passed by the learned Judicial Magistrate First Class, Kamrup, (M) Guwahati in C.R. Case No. 4773/2017. It is to be noted here that vide impugned order the learned Court below has taken cognizance of the offence under section 138 of the N.I. Act against the petitioner and issued process to him to appear before the learned court below and to face trial.

3. The factual background leading to filing of the present application is briefly stated as under:-

“The petitioner was earlier appointed as one of the Director of Asrdeep Infotech Private Limited w.e.f. 16.11.2016, and he had discharged his duties up to the satisfaction of the management of the Company. However, due to some pre-occupation with some other works he had resigned from the said post of Director of Asrdeep Infotech Private Limited on 03.07.2017, and communicated the same to the Board of Directors in writing and the Board of Directors has duly accepted the same on the same date and also the same is recorded by the Registrar of the Companies on the same date. Thereafter, the petitioner had received one pleaders Notice, dated 25.09.2017, issued by Advocate of the opposite party, to the effect that the opposite party has executed construction work of Five Star Hotel in Guwahati and Shillong and due to shortage of fund one Mr. Akhilesh has approached the opposite party for fund. And accordingly, on good faith, the opposite party has paid a sum of Rs.50,00,000/-, to said Akhilesh however, inspite of lapse of reasonable time, the said amount was not returned. Thereafter, Mr. Akhilesh has issued a cheque bearing No. ‘070544’ dated 31.07.2017, drawn on Axis Bank, Pune for a sum of Rs.25,00,000/-, in favour of the opposite party towards discharging liability. But, the said cheque was dishonored due to insufficient fund. And therefore, vide said notice the opposite party demanded to make the payment along with interest @ 18% within 15 days. Thereafter, the petitioner had sent his reply to the notice dated 25.07.2027, that the petitioner had already resigned from the Asrdeep Infotech Private Limited and the same was duly accepted by the Board of Directors and thereby requested the opposite party not to entangled the petitioner into the affairs of the Company and he had furnished the names of the present Directors. And inspite of receipt of said reply, the petitioner was arraigned as an accused in the C.R. Case No. 4773/2017, filed before the learned Judicial Magistrate First Class, Kamrup, (M) Guwahati and the learned court below, vide order dated 20.04.2018, taken cognizance of the offence under section 138 of the N.I. Act read with section 406/420 IPC, against the petitioner and issued process to him to appear before the learned court below and to face trial.”

4. Being highly aggrieved, the petitioner approached this Court by filing the present revision petition on the following grounds:-

[i] That, the learned court below had erred in law by failing to consider that the petitioner was not the Director of the Company while the cheque in question was issued and that cognizance was taken against him ignoring the provision of section 141 of the N.I. Act.

[ii] That, the learned court below had failed to appreciate the fact that the petitioner was serving as Director of the Company since 16.11.2015 to 03.07.2017;

[iii] That, the learned court below also failed to consider that there is not a single averment in the complaint against the present petitioner to the effect that he was in-charge and responsible for the day to day conduct of the company during the relevant period of time which is the basic ingredient of the offence under section 14