H.K Sandhu, J.:— This order will dispose of Criminal Misc. petition No. 6647-M of 1993 and Criminal Misc. No. 6577-M of 1993, as same legal controversy is involved in both the petitions between the same parties.

2. The petitioners have filed these petitions under Section 482 of the Code of Criminal Procedure for quashing the complaint dated 2nd January, 1993 Annexure P-1 (in both the cases) filed by the respondents against them under Section 138 read with Sections 141 and 142 of the Negotiable Instruments Act (the ‘Act’ for short) and also for quashing of the summoning orders Annexure P-2. The allegations made in the complaints filed by the respondents were that M/s Apollo Processors Private Ltd., Old Jail Road, Amritsar drew cheque Nos. 076548 and 076549 dated 1st December, 1992, each for a sum of Rs. one lac payable to the complainant-firm M/s Ashwani Kumar Satish Kumar. These cheques were duly signed by its Director namely Jatinder Podar and were drawn at Vijay Bank, Amritsar. The cheques were processed to Vijay Bank by the complaint firm for receiving the payment in question in payees account through the New Bank of India. These cheques were dishonoured by Vijay Bank and as per memos dated 4th December, 1992 in one case and 12th December, 1992 in the other case. It was stated that the matter may be referred to Drawer. The cheques were returned unpaid because the amount of money standing to the credit of the petitioners was insufficient to honour the cheques. The cheques were presented within a period of six months from the date on which the same were drawn and the complainants made a demand for the payment of the amount by giving notice in writing to the drawer of the cheque i.e petitioners within fifteen days from the receipt of information from Vijay Bank regarding return of the cheques as unpaid. Notice of dishonour of cheques was sent by the complainants through registered acknowledgement and under certificate of posting but no payment was made, so complaints were filed on 2nd January, 1993 against the petitioners as well as Shri Jatinder Podar and firm M/s Apollo Processors Private Limited. The petitioners were arraigned as accused on the allegation that they were Directors of the firm and were incharge and were responsible to the company for the conduct of the business of the firm.

3. The petitioners alleged that they had been illegally involved in the case and in fact petitioner No. 1 who was wife of Jatinder Podar, the Managing Director of the firm, was only a housewife and had no say or control over the everyday affairs of the firm. Petitioner No. 2, Rajan Podar son of Jatinder Podar was only 21 years old and was a student seeking admission in Post Graduate Course and was not concerned with the business of the concern. They had not issued the cheques. It was further alleged that statutory notice which was required to be issued within fifteen days of the dishonouring of the cheque was not issued within the said period nor the complaints were filed within the statutory period of thirty days from the date of cause of action arose to the complainants.

4. In the reply filed by the complainant-respondents the allegations made in the petition were denied and it was asserted that the petitioners were Directors of the company and were incharge of affairs of the company for the conduct of its business. It was admitted that the cheques were drawn by Jatinder Podar but it was maintained that the Directors of the company on whose behalf the cheques were issued and which were dishonoured for want of funds, were also liable for the offence as they were incharge of and responsible to the company for the conduct of its business.

5. I have heard Mr. Sudeep Mahajan, Advocate, the learned counsel for the petitioners and Mr. B.R Mahajan, advocate, the learned counsel for the respondent.

6. A perusal of the complaints as well as the summoning orders in both the cases show that the averments made in the complaints were that M/s Apollo Processors Private Ltd. owed the amount in question to the complainants and the debt due was legally enforcible debt. In the discharge of the debt, two cheques were issued by Jatinder Podar, Managing Director of the firm. The cheques were dishonoured with a memo referred to drawer for lack of sufficient funds immediately thereafter notices were issued to the company as well as to all the Directors who were incharge of the conduct of the business of the company and demand for the payment was made within fifteen days of the receipt of the information from the Bank regarding the dishonour of the cheques. The petitioners and others failed to make the payment to the holder of the cheques within fifteen days of the receipt of the notice and thus complaint was filed within the period of limitation. The learned counsel for the petitioners considering this averment in the petition did not address any argument assailing the complaint and summoning order on this ground.

7. The only contention of the learned counsel for the petitioners was that both Mrs. Manju Podar and Mr. Rajan Podar were not incharge of the conduct of the business of the company and they were implicated with the sole intention of settling scores with Jatinder Podar. Mrs. Manju Podar was a housewife and had no control over the everyday affairs of the firm and Mr. Rajan Podar who was a young boy and was a student, had no say in the everyday business of the firm. It was further submitted that there was no allegation in the complaint against the petitioners that the company committed the offence with the consent or connivance or neglect on the part of its Directors, Manager etc. In the absence of these averments, the petitioners could not be held liable for any offence. In support of his contention, the learned counsel placed reliance on the case of Harbhajan Singh Kalra v. State of Haryana, 1992 (1) Recent Criminal Reports 169. This submission of the learned counsel for the petitioners, however, does not hold good. In order to find out whether the case of the petitioners falls under Section 141(2) of the Act, a reference may be made to the relevant provisions. Section 141 of the Act reads as under:—

“141(1) If the person committing an offence under Section 138 is a company, every person who at the time the offence was committed, was incharge of and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:

Provided that nothing contained in this sub-section shall render any person liable to punishment if he proves that the offence was committed without his knowledge, or that he had exercised due diligence to prevent the commission of such offence.

“(2) Notwithstanding anything contained in sub-section (1), where any offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributed to, any neglect on the part of, any Director, Manager, Secretary or other Officer of the company, such Director, Manager, Secretary or other Officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

Explanation : For the purposes of this section:

(a) “Company” means any body corporate and includes a firm or other association of individuals; and

(b) “director” in relation to the firm, means a partner in the firm.”

8. A perusal of sub-section (1) referred above leaves no doubt that if the person committing an offence is a company then every person who was incharge of and was responsible to the company for the conduct of the business of the company at the time the offence was committed, shall be deemed to be guilty of the offence and so also the company. The respondents have specifically alleged in the complaints that both the petitioners were directors of the Company and were also incharge of and were responsible to the company for the conduct of its business. The complaints cannot be considered to be defective as ingredients of the offence are very well made out from the allegations made therein. There are specific averments regarding the guilt of the petitioners as well. The question whether they were actually incharge of and were responsible to the company for the conduct of its business, will be determined after evidence was led to that effect by the parties.

9. So far as sub-section (2) of Section 141 is concerned, I am of the view that it is not applicable to the case of the present petitioners. It is well-settled that a clause beginning with ‘notwithstanding anything contained’ is appended to a Section with a view to give the enacting part of the Section, in case of conflict an overriding effect over the provision mentioned in the non-obstante clause, that the provisions embraced in the non-obstante clause will not be an impediment for the operation of sub-section (1). Under sub-section (1), every person incharge of and responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence under Section 138 of the Act. But sub-section (2) provides that besides the persons mentioned in sub-section (1) where any offence committed by a company is proved to have been committed with the consent or connivance or is attributable to any neglect on the part of any director, Manager, Secretary or other Officer of the company then said Director, Manager, Secretary or Officer shall also be deemed to be guilty of that offence.

10. It would mean that even if such Director, Manager, Secretary etc. was not incharge and was not responsible to the company for the conduct of the business of the company, he will still be liable if the offence was committed with his consent, connivance or due to his negligence. No such averments are required to be made in the complaint against the persons who were incharge of the business of the company. The allegations as contained in the complaint prima facie made out a case against the petitioners and they were rightly summoned by the trial Court to stand trial.

11. For the reasons recorded above, I find no merit in this petition and dismiss the same.