THE QUESTION OF WHETHER A PERSON IS IN CHARGE OF OR RESPONSIBLE FOR THE COMPANY'S BUSINESS IS TO BE ADJUDICATED ON THE BASIS OF MATERIALS TO BE PLACED BY THE PARTIES DURING TRIAL.

1. - This petition has been filed under Section 482 CrPC.

2. Brief facts of the case are as under:-

"Complainant filed a criminal complaint for the offence under Section 138 of N.I. Act against the petitioner and another co-accused persons. The trial court vide order dated 28.2.2012 took cognizance for the offence under Section 138 of N.I. Act against the petitioner and co-accused person. The petitioner and other co-accused person preferred revision petition before Sessions Judge, Alwar, which was transferred to the Court of Addl. Sessions judge No.2, Alwar, who vide order dated 11.7.2013 dismissed the revision petition and affirmed the order of the trial court. Hence, this misc. petition has been filed before this court."

3. Learned counsel for the petitioner has contended that criminal proceedings pending against the petitioner before the trial court is absolutely the abuse of the process of law. He has further contended that the petitioner was not aware about the alleged execution of Memorandum of Understanding dated 6.11.2011 and also for handing over the cheque for Rs. 75.00 lakh. There is no role of the petitioner in entering into alleged transaction. He has further contended that the petitioner neither signed the Memorandum of Understanding dated 6.11.2011 nor petitioner has signed the cheque. Therefore, the petitioner was neither. In char gen or person responsible for the working affairs of the company. He has further contended that cheque in question was issued in favour of the complainant in his name and in the individual capacity, which has been alleged to have been received by the complainant on behalf of the company named M/s. Vibgyor Ceramics Ltd. The petitioner has been impleaded in the present case in her individual capacity. The complainant has failed to establish the role of the accused petitioner as, In charge or responsible to the company for the conduct of the business. He has further contended that he has also submitted in the reply to the notice under Section 138 of the Negotiable Instrument Act that the petitioner has no concern with the affairs of the company, therefore, she cannot be made liable for the affairs of the company. The cheque was issued by the co-accused Anil Kumar Gupta not in the individual capacity but as the Director of the Company i.e. M/s. CCL International Limited, whereas complainant has not impleaded Company as accused and for fastened any criminal liability upon a Director, company is the necessary party and without this, no liability can be fastened upon the petitioner and co-accused in the individual capacity in the facts and circumstances of the case. The petitioner's name was not mentioned in the Memorandum of Understanding dated 6.11.2011 as Director nor she has signed the MOU and further she is not managing the day to day affairs of the company as such the petitioner is not liable for the payment, hence proceedings pending against the petitioner before the court below or the trial court be set-aside. For this purpose, he has cited the following judgments:

(i) K.K. Ahuja v. V.K. Vora and another reported in (2009) 10 SCC 48

(ii) Central Bank of India v. Asian Global Limited and Others reported in (2010) 11 SCC 203

(iii) National Small Industries Corporation Ltd. v. Harmeet Singh Paintal and Another reported in AIR 2010 SC (Supp) 569

(iv) Anita Malhotra (Mrs.) v. Apparel Export Promotion Council & Another reported in (2011) 4 RLW (SC) 3586

(v) SMS Pharmaceuticals Ltd. v. Neeta Bhalla and another reported in (2005) 8 SCC 89

(vi) DCM Financial Services Ltd. v. J.N. Sareen and another reported in (2008) 8 SCC1

(vii) Green earth Asphalt and Power Private Limited v. State of Maharashtra reported in (2008) 8 SCC 278

(viii) Sunil Kumar v. Nahata Fabrics reported in 2006 2 RDD 1135

4. On the other hand, learned PP appearing for the State assisted by counsel for the respondent no.2 have opposed the same. They have contended that on 28.2.2012, the cognizance was taken by the learn