B. Akbar Basha Khadiri, J.:— This criminal original petition is to call for records in C.C No. 433 of 1998 pending on the file of the Judicial Magistrate No. II, Tuticorin, and quash the same.

2. This criminal original petition has arisen in this way:

The respondent Chandrasekaran instituted a private complaint against the petitioner and two other persons alleging that they have committed offence under section 138 of the Negotiable Instruments Act, 1881. According to the respondent, the petitioner and one Beryl borrowed Rs. 80,000 from the respondent on May 6, 1998, for running a company. The petitioner herein and Beryl were actively engaged in running the affairs of the company. Beryl and the petitioner are the directors of the company. After borrowing, one of the directors Beryl had issued a post-dated cheque for Rs. 80,000 drawn on Pandiyan Grama Bank, Tuticorin. The date of the cheque is July 6, 1998. When the cheque was sent for collection on July 6, 1998, it was returned on the same date with an endorsement “funds insufficient”. The respondent issued a statutory notice on July 17, 1998, calling upon the company and the directors to make payment. Beryl evaded the service. The petitioner received the notice on July 22, 1998. He sent a reply on the same date containing certain false allegations. Since no amount was forthcoming within fifteen days after receipt of the notice by the petitioner, the respondent instituted criminal proceedings under section 138 read with section 141 of the Negotiable Instruments Act against the company and its directors on the file of the learned Judicial Magistrate No. II, Tuticorin, who took cognizance of the matter in C.C No. 433 of 1998. Now, the petitioner seeks quashing of the proceedings on the following grounds:

(i) Though he was a director of the third accused-company, he had resigned from the office of the director on January 2, 1997. He had even transferred the shares to other persons and the respondent was aware of the same. Further, the petitioner had met with a road accident on May 26, 1994, in which he lost his wife and driver. He had sustained severe fractures. He had not been attending to the affairs of the company thereafter and subsequently, he had resigned; and

(ii) He had repudiated his liability by issuance of reply notice dated July 22, 1998, which the respondent/complainant would have received by July 24, 1998. The date of refusal to return money should be reckoned from July 24, 1998, and the complaint not having been filed within one month from July 24, 1998, is barred by limitation and, therefore, the instant criminal proceeding amounts to an abuse of the process of the court.

3. Heard both the sides. The first contention of the petitioner is that he was not in charge of and responsible for the business and the day-to-day affairs of the company, because he had resigned from the office of the director on January 2, 1997. Learned counsel for the petitioner cited a catena of decisions to show that unless and until the petitioner is shown to be in charge of and responsible for the business and day-to-day affairs of the company, no liability under section 138 of the Negotiable Instruments Act would be attracted. In Col. R.S Aggarwal, M.D, Haryana Petrochemicals Ltd. v. Ashoh Ley-land. Finance Ltd., [1998] 1 MWN (Cr.) 40, my learned brother K. Govindara-jan J., has considered this aspect in extenso, and referring to various pronouncements of this court, the apex court and other courts, held, to be made liable, the complaint must first show that the petitioner was in charge of and responsible to the company at the time when the offence was committed and if the averment is lacking, then no culpability under section 138 of the Negotiable Instruments Act would be attached to the petitioner. Instantly, the learned judge has also referred to the decision rendered by M.S Janarthanam J., in N. Doraisamy v. Archana Enterprises, [1995] Cri LJ 2306; [1999] 97 Comp Cas 129 (Mad), wherein the learned judge held that specific averments in the complaint as to the persons responsible to and in charge of the company in relation to its business or persons with whose consent or connivance of, or due to any neglect on his part, the offence had been committed, though have not been specifically mentioned, the absence of such averments in the complaint is of little consequence. K. Govindarajan J., has dissented with the view expressed by M.S Janarthanam J., in the decision cited supra.

4. In Agritech Hatcheries and Food Ltd. v. Valuable Steels India Ltd., [1998] 1 MWN (Cr.) 99; [1999] 96 Comp Cas 534 (Mad), K. Govindarajan J., had another occasion to consider the same question and reiterated that there should be specific averments against the officer of the company to attract liability under section 138 of the Negotiable Instruments Act. That was a case where the vice-president of the company was arrayed as an accused, but no averments were made in the complaint that he was in charge of and responsible for the business and day-to-day affairs of the company. The learned judge expressed the view that because a particular person happens to be the vice-president of the company, it cannot be presumed that he is at the helm of affairs of the company.

5. A. Raman J., had an occasion to consider similar question with respect to the provisions of sections 39 and 44 of the Electricity Act in S. Muru-ganandam v. State, [1998] 2 LW (Crl.) 514. In that case, the second accused was a partner of the company, but he had retired from the partnership and public notice by way of publication in dailies were also made. In that case, the learned judge disapproved the action of the prosecution in arraying the petitioner as an accused. The learned judge expressed the view that it is the duty of the prosecution to verify from the authorities concerned and find out whether the second accused continued as a partner, and failure to verify is a callous attitude inviting reprimand, as it is nothing but harassment and humiliation. The learned judge referred to the observation made by the apex court in Sham Sunder v. State of Haryana, (1989) 4 SCC 630 : AIR 1989 SC 1982; [1990] 67 Comp Cas 1 wherein the apex court had pointed out as under (headnote of AIR):

“More often, it is common that some of the partners of a firm may not even be knowing of what is going on day-to-day in the firm. There may be partners, better known as sleeping partners, who are not required to take part in the business of the firm. There may be ladies and minors who were admitted for the benefit of partnership. They may not know anything about the business of the firm. It would be a travesty of justice to prosecute all partners and ask them to prove under the proviso to sub-section (i) of section 10 that the offence was committed without their knowledge… Thus where the documents produced by the prosecution do not indicate even remotely that all the partners were doing the business of the firm and there was no other evidence on record on this aspect, it could not be said that when the offence was committed all the partners were conducting the business of the firm and, therefore, they would not be liable for conviction.”

6. That was a case where the complaint merely stated that the second accused was a partner of the company. It appears, there were no averments that he was in charge of and attending to the day-to-day affairs of the company.

7. The same judge had occasion to consider a similar question in M. Inbarajan v. Baladhandapani, [1998] 2 LW (Crl.) 631, which arose under the provisions of sections 138 and 141 of the Negotiable Instruments Act, where the former managing director and a salesman were also arrayed as accused along with the present managing director. The learned judge observed that in the complaint, there was no averment that they were in charge of and responsible for the business and day-to-day affairs of the company. The learned judge further held that provision under section 109 of the Indian Penal Code cannot be applied to the proceedings under the Negotiable Instruments Act.

8. In Coronation Printing Ink Mfg. Co. v. Elgi Finance Ltd., [1998] 2 MWN (Cr.) 291; [2001] 107 Comp Cas 192 (Mad), my learned brother M. Karpagavinayagam J., had occasion to consider a similar aspect. In that case, the complainant filed complaint against the company as well as the partners, but there were no averments that the partners were in charge of and responsible for the business and the day-to-day affairs of the company. The learned judge pointed out that unless there is basic foundation through relevant averments as against the partners, complaint against them was not legally sustainable.

9. In S. Viswanathan v. United Phosphorous Ltd., [1999] 97 Comp Cas 922 (Mad); [1999] 2 MWN (Cr.) 35, wherein V. Bakthavatsalu J. had pointed out that the absence of averments in the complaint that the accused were in charge of and responsible to the company for the conduct of the business of the company, is an inherent defect in the complaint, which would vitiate the entire proceedings.

10. S. Thangaraj J. also had an occasion to consider this position in Modem Denim Limited v. Lucas TVS Ltd., [1999] 2 MWN (Cr.) 284; [2001] 105 Comp Cas 194 (Mad). That was a case where the first accused-company was managed by accused Nos. 2 to 10 directors. It was alleged in the complaint that accused Nos. 2 to 10 were in control of day-to-day management and affairs of the company. Besides issuance of cheques, the second accused personally guaranteed the due repayment. The first accused gave a letter with the knowledge of accused No. 2 whereby they assured to provide sufficient funds to honour the cheque. The learned judge held that accused No. 1 is primarily liable and as the drawer, accused No. 2 is also liable and they cannot be absolved of the liability. However, so far as accused Nos. 3 to 11 are concerned, the learned judge held that there was no evidence to show that at the time of the commission of offence, they were in charge of and were responsible to the company for the conduct of the business and consequently, concluded that accused Nos. 3 to 11 are not liable. With due respect to the learned judge, I am in disagreement with the view expressed therein. At the threshold, we have to only search whether the necessary ingredients to attract offence under section 138 of the Negotiable Instruments Act are made out and it is not necessary to search for evidence or whether intrinsic evidence is available to establish the ingredients.

11. The ingredients necessary to attract an offence under section 138 of the Negotiable Instruments Act are: (i) A cheque should have been issued for the discharge in whole or in part of any debt or other liability; (ii) The cheque should have been presented within the period of six months or within the period of its validity which ever is earlier. It should have been returned by the bank for insufficient funds; (iii) The payee or the holder in due course should have issued a notice in writing to the drawer within fifteen days on receipt of information by the bank regarding the return of the cheque as unpaid; (iv) After receipt of such notice from the payee or holder in due course, the drawer should have failed to pay the cheque amount within fifteen days of the receipt of the said notice; and (v) On non-payment of the amount due on the dishonoured cheque within fifteen days of the receipt of the notice by the drawer, the complaint should have been instituted within one month from the date of expiry of the grace period of fifteen days' time, before the Magistrate concerned. At this stage, it is not necessary to find out whether the ingredients are proved by evidence.

12. In a later decision reported in M. Chockalingam v. Sundaram Finance Service Ltd., [2000] 1 LW (Crl.) 15; [2001] 106 Comp Cas 375 (Mad), S. Thangaraj J. again had an occasion to consider whether a director can be roped in under section 138 of the Negotiable Instruments Act, sans the allegation in the complaint that he was in charge of and responsible to the company for the conduct of the business. The learned judge held that without such averment, the complaint would not be maintainable against the said director.

13. From the above-said decisions, it is clear that to rope in a partner or director of a company or a firm, it is essential that there should be averments that such partner or director was in charge of and responsible for the business and day-to-day affairs of the company. In the instance case, I have perused the complaint. The respondent/complainant has clearly averred in the complaint that the petitioner is a director of M/s. Gnanaraj Chits (P.) Ltd. He had also stated that the petitioner has actively engaged in the running of the company. Therefore, it is not necessary to go into the question as to what was the part played by him regarding the management of the company. It is sufficient if the averments are made that he was at the helm of the affairs of the company.

14. The next point raised by the petitioner is that he has resigned from the office of the directorship on January 2, 1997, and had even transferred his shares to others which fact the respondent was aware of. The question whether or not the respondent was aware of such resignation is a question of fact which has to be gone into at the time of the trial. In Rajan Kin-nerkar v. Eric Cordeiro, [1994] 80-Comp Cas 487, the Panaji Bench of the Bombay High Court had an occasion to consider this question and held that the fact of ceasing to be director has to be recorded by the trial court and the complaint under section 138 of the Negotiable Instruments Act cannot be quashed in a petition filed by the director under section 482 of the Criminal Procedure Code.

15. In Habibunnisa Akthar v. S. and S. Industries & Enterprises Ltd., [1995] 83 Comp Cas 593 (Mad), it was held that on the basis of the extract from the Registrar of Firms produced to show that the accused was not a partner of the firm when allegations in the complaint are made out, that the accused was a partner, that the question should be decided only in the trial and the complaint cannot be quashed on that score.

16. In Manju Podar… v. Ashwani Kumar…, [1996] 86 Comp Cas 631 (P & H), it has been observed that the persons accused of the offence were directors and were in charge of and responsible for the conduct of the company's business and as such prima facie case has been made out and the question whether they were actually in charge of the company's affairs has to be decided in the trial.

17. In Rajesh Bajaj v. State NCT of Delhi, [1999] 1 ALT (Crl.) 301 (SC); (1999) 3 SCC 259 : AIR 1999 SC 1216, the apex court has held that in a petition under section 482 of the Criminal Procedure Code it is not permissible to adopt a strictly hypertechnieal approach and “sieve the complaint through a colander of finest gauzes for testing the ingredients” of the offence alleged against the accused, and that as to whether the person in question was really in charge of the affairs of the company and was responsible to the affairs of the company or not, and as to what functions, he was assigned in the affairs of the company and whether those functions could be considered sufficient to hold that he was in charge of the affairs of the company are matters which have to be gone into during the trial.

18. The same view has been expressed by the Andhra Pradesh High Court in K. Pannir Selvam v. M.M T.C Ltd., [2000] 99 Comp Cas 94; [2000] 2 Crimes 354 wherein it was held that minute dissection of statement in complaint could not be undertaken in quashing proceedings. The Andhra Pradesh High Court was of the view that when a plea was raised that the accused ceased to be a director, it is a matter to be decided during the trial.

19. Nextly, the petitioner has raised a contention that he had given a reply to the statutory notice on July 22, 1998, which the respondent/complainant would have received at least on July 24, 1998, that in that reply notice, the liability has been repudiated absolutely and, therefore, the time of grace period of fifteen days will run from the date of the repudiation, i.e, on July 24, 1998, and that the complaint ought to have been filed within one month from July 24, 1998, and therefore, the claim is barred by limitation. Firstly, the question of limitation has to be considered by the trial court. Secondly, when statutory notice is issued, the complainant has to wait for fifteen days after receipt of the notice by the drawer and only on the sixteenth day, he can prefer a complaint. Repudiation of the claim by a notice by itself would not give rise to immediate cause of action, because within the grace time, the drawer may have locus penitentiae and resolve to make even part payment. In such case immediately after repudiation if a complaint is filed, the complaint may even become a premature complaint. I cannot subscribe my assent to the point raised by the petitioner herein.

20. In the result, this criminal original petition is dismissed. Consequently, Crl. M.P No. 3056 of 1999 is also dismissed.