K. GOVINDARAJAN, J.

The respondent filed a complaint against the petitioners for the alleged offence committed under section 138 of the Negotiable Instruments Act, 1881. According to the respondent, in settlement of the bill of exchange for a sum of Rs. 47, 57, 000, dated December 18, 1995, the second petitioner, on behalf of the first petitioner issued a cheque which was dishonoured for the reason "account closed". The said complaint was taken on file by the XIVth Metropolitan Magistrate, Egmore, Madras. To quash the said proceedings, the petitioners have filed the above O.P.

Learned counsel appearing for the petitioners has submitted that the complaint filed against them is barred by limitation, that there is no required averment in the complaint against the third petitioner and that, therefore, the complaint cannot be maintained against the third petitioner for want of allegation as required under section 141 of the Negotiable Instruments Act.

Learned counsel is not in a position to substantiate his contention regarding limitation, though the said ground has been raised in the petition. With respect to the second submission, learned counsel took me to section 141 of the Act. According to learned counsel, nothing has been stated in the complaint about the third petitioner. Learned counsel has relied on the decision in Senthilkumar Tea Industries v. N. Rajkumar 1994 1 LW (Crl.) 278, in support of his submission.

Learned counsel appearing for the respondents has submitted that since the third petitioner is the vice-president of the company, it cannot be said that he has not been actively participating in the company. He further submitted that since he is the vice-president of the company, he should be impleaded as respondent and has to face the trial. In support of his submission, he relied on the decision in Saj Flight Services (P.) Ltd. v. P. T. Gopala Raja 1997 (88) CC 344 (Mad).In the present case, in the complaint, except stating that the third petitioner is the vice-president of the company, nothing more is stated about his participation in the affairs of the company, at the time of commission of the offence. In the decision in Senthilkumar Tea Industries v. N. Rajkumar 1994 1 LW (Crl.) 278, referred to above, Pratap Singh J., relying on the decision of the apex court in Delhi Municipality v. Ram Kishan, 1983 AIR(SC) 67, 1983 CAR 44, 1983 (89) CrLJ 159, 1983 CrLR(SC) 9, 1982 (2) Scale 1124, 1983 (1) SCC 1, 1983 SCC(Cr) 115, 1983 (1) SCR 884, 1983 UJ 148, 1983 (203) All(CriC) 50, 1983 (20) ACC 50, 1983 SCC(L&S) 833, has held that in the absence of any averment whatsoever to implicate the accused by invoking section 141 of the Act, the complaint cannot be sustained against such person.

Learned counsel appearing for the respondent has relied on the decision in Saj Flight Services (P.) Ltd. v. P. T. Gopala Raja 1997 (88) CC 344 (Mad), referred to above, wherein, N. Arumugham J. has held that all the persons concerned inclusive of the other directors or the partners must be jointly and severally liable, for which every one had to be added as party. With great respect to the learned judge, I cannot agree with the said principle set out in the judgment. The earlier judgments of this court in Senthilkumar. Tea Industries v. N. Rajkumar 1994 1 LW (Crl.) 278, referred to above, and C. Balasundaram v. Prakash (Crl. M.P. No. 13898 of 1989, dated 27th November, 1990) were not brought to the notice of the learned judge. In the judgment delivered by Pratap Singh J. in Senthilkumar Tea Industries v. N. Rajkumar 1994 1 LW (Crl.) 278, referred to above, the learned judge relying on the decision of the apex court in Delhi Municipality v. Ram Kishan, 1983 AIR(SC) 67, 1983 CAR 44, 1983 (89) CrLJ 159, 1983 CrLR(SC) 9, 1982 (2) Scale 1124, 1983 (1) SCC 1, 1983 SCC(Cr) 115, 1983 (1) SCR 884, 1983 UJ 148, 1983 (203) All(CriC) 50, 1983 (20) ACC 50, 1983 SCC(L&S) 833, referred to above, took that view.

To appreciate the rival submissions on