This case calls for interpretation and application of propositions (a) to (c) in S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla (2005 (4) K.L.T. 209).

2. The common petitioner is the 3rd accused in four connected prosecutions-all initiated by the 1st respondent/complainant under Sec. 138 of the N.I. Act. Admittedly, the petitioner is not a signatory to the four cheques in question. He has been sought to be fastened with liability under Sec. 138 read with Sec. 141 of the N.I. Act on the basis of the following specific identical allegations raised in para 1 of the four complaints concerned:

"The first accused is a public limited company, the second accused is the Managing Director and the third accused is the Director Finance of the first accused. The second and third accused are fully involved in the working of the first accused company,"

(emphasis supplied)

3. Later in para 6 of all these complaints, the following identical averments also do appear:

“6. At the time when the cheque was given to the complainant, the accused made him believe that there is sufficient fund in the account of the accused. But when the cheque was presented it came in to the notice of the complainant that there is no sufficient fund in the account of accused to honour the cheque. Thus the accused purposefully cheated the complainant and thereby sustained wrongful gain and failed to pay the amount even after the receipt of this notice."

4. The complaints were filed before the learned Magistrate. Cognizance was taken. Summons was issued to all the accused including the petitioner herein. On receipt of the summons from the court, after entering appearance before the learned Magistrate, the petitioner/the 3rd accused has come to this Court with a prayer that the cognizance taken against him may be quashed invoking the powers under Sec. 482 of the Cr.P.C.

5. What is the reason? The short contention raised is that no averments to attract culpable liability under Sec. 138 read with Sec. 141 of the N.I. Act have been raised against the petitioner. Inasmuch as the vital and crucial averments to attract the play of Sec. 141 of the N.I. Act are not even made in the complaint, powers under Sec. 482 of the Cr.P.C. are liable to be invoked and the proceedings should be brought to premature termination. This, in short, is the plea.

6. There is no dispute before me, at this stage, that the petitioner was not the Director Finance of the 1st accused—Company on the date when the cheque was dishonoured. He was admittedly not the Director Finance on the date when the cheque was issued. But on the date when the cheque was presented and it was dishonoured, the petitioner was admittedly the Director Finance of the Company.

7. Sec. 141 of the N.I. Act refers to "the time when the offence was committed". That expression has been considered in Kairali Marketing and Processing Co-operative Society Ltd. and another v. Pullengadi Service Co-operative Society Ltd. and another (I.L.R. 2006 (4) Kerala 697) and it has been held that the offence under Section 138 of the N.I. Act must be held to be committed on the date when the cheque was returned unpaid. So, the petitioner was on the relevant date the Director Finance of the company. There is no dispute on this aspect of the matter.

8. The crucial and vital dispute is raised in the light of the proposition (a) laid down in S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla (2005 (4) K.L.T. 209). Cognizance should not have been taken inasmuch as a specific assertion that the petitioner/the 3rd accused was “in charge of and responsible to the company for the conduct of its affairs" has not been raised.

9. It will be apposite in this context, first of all, to refer to the three specific questions which were considered by a larger Bench of the Supreme Court in S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla (2005 (4) K.L.T. 209). They are extracted in para 1 as follows:

"(a) Whether for purposes of S 141 of the Negotiable Instruments Act, 1881, it is su