The burden of proof lies on the complainant to establish the involvement of accused directors in the company's affairs at the time of the offense, and unimpeachable evidence is required to establish the liability of accused directors in cases involving dishonored cheques issued by the company.

Alexander Thomas, J.

1. The petitioner in Crl. M. C. No. 1548 of 2016 is accused No. 3 in C. C. No. 513 of 2015 on the file of the Judicial First Class Magistrate Court (N.I. Act Cases), Kochi, for the offence punishable under Section 138 of the Negotiable Instruments Act, instituted on the basis of a complaint filed by the first respondent herein.

2. The gist of the allegation in the complaint is that the first respondent herein, who is a local business man, has paid Rs.5,00,000/- to the petitioner (A3) and her husband (A2) on the assurance of providing directorship of the first accused Company. But, the first respondent was not given the directorship of the Company as ensured by the petitioner and her husband. It is stated in the complaint that the accused and her husband had made arrangements to return the said amount of Rs.5,00,000/- by the issuance of the cheque in question. The second accused (petitioner's husband) is the Managing Director of the first accused Company who has signed and issued the cheque in question and that the third accused (petitioner herein) is also responsible for the conduct of the day to day affairs of the business of the first accused Company. The cheque got dishonoured on presentation and the accused failed to repay the amount on demand. This resulted in the institution of C. C. No. 513 of 2015, on which the learned Magistrate had taken cognizance for the offence punishable under Section 138 of the Negotiable Instruments Act and had issued summons to all the three accused therein.

3. Annexure A2 dated 01/10/2013 is stated to be the letter of resignation given i the petitioner resigning as Director of the Company and that by Annexure A5 resolution: a dated 01/10/2013, the Board of Directors of the first accused Company had accepted the resignation of the petitioner as the Director of the Company. Annexure A6 statement of profit and loss account of the Company for the financial year 2013-2014 would show that the said document was signed only by the other Directors and not by the petitioner. Further that Annexure A7 balance sheet of the Company for the year 2013-2014 would also show that the petitioner is not a Director of the Company. It is stated by the learned counsel for the petitioner that the fact regarding the resignation of the petitioner on 01/10/2013 was duly intimated to the Registrar of Companies, Kerala. It is accordingly submitted that even as per the averments in Annexure Al complaint, the date of issuance of the dishonoured cheque is 20/12/2014 and that the petitioner had resigned from the directorship of the Company much prior to that and as early as on 01/10/2013. Accordingly, it is contended that the petitioner cannot be mulcted with the corporate vicarious liability as envisaged in Section 141 of the Negotiable Instruments Act in as much as she had resigned from the directorship of the Company as early as on 01/10/2013, which is much prior to the date of issuance of the cheque in question. The petitioner would also place reliance on Annexure A3 which is stated to be the website materials issued by the Ministry of Corporate Affairs to contend that she had demitted the office as Director of the Company with effect from 01/10/2013.

4. The petitioner places reliance on the judgment of the Apex Court in Pooja Ravinder Devidasani v. State of Maharashtra and another reported in 2014 (16) SCC 1 : AIR 2015 SC 675 : 2014 ICO 1963 herein it is held that where the accused is not a Director or in charge of the day to day affairs of a Company at the time of commission of the alleged offence or where the accused had resigned from the Board of Directors of the Company much before the issuance of cheque, then the continuation of the impugned criminal proceedings under Sections 138 and 141 of the Negotiable Instruments Act will amount to abuse of the process of law.

5. In Crl. M. C. No. 1558 of 2016, the petitioner therein is the same as the one involved in Crl. M. C. No. 1548 of 2016. The fact