K.K. Joy and Others v. Kerala State Industrial Development Corporation Ltd. and The State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 10TH DAY OF JULY 2017/19TH ASHADHA, 1939** ## **Crl.MC.No. 6831 of 2016 ()** ## **--------------------------C.C. NO. 1172/2017 OF JUDICIAL FIRST CLASS MAGISTRATE COURT , ANGAMALY** ## **PETITIONER(S)/ACCUSED 2,3,5 AND 6:** **---------------------------------** ## **1. K.K.JOY** - **FORMER MANAGING DIRECTOR, M/S COCHIN KAGAZ LTD, RESIDING AT KODIYAN HOUSE, CHENDAMANGALAM, NORTH PARUR, ERNAKULAM.** ## **2. K.M. ABDUL RAHIMAN,** - **FORMER EXECUTIVE DIRECTOR, M/S COCHIN KAGAZ LTD, RESIDING AT KUTTIMACKAL HOUSE, ERUMATHALA P.O, CHOONDY, ALUVA 683 105.** **3. K.M. KHALID,** - **FORMER DIRECTOR, M/S COCHIN KAGAZ LTD, RESIDING AT KUTTIMACKAL HOUSE, ERUMATHALA P.O, CHOONDY, ALUVA 683 105.** ## **4. K.K. JOSE,.** - **FORMER DIRECTOR, M/S COCHIN KAGAZ LTD, RESIDING AT KODIYAN HOUSE, CHENDAMANGALAM, NORTH PARUR, ERNAKULAM.** **BY ADVS.SRI.S.EASWARAN SRI.P.MURALEEDHARAN (IRIMPANAM) SRI.M.A.AUGUSTINE SRI.P.SREEKUMAR (THOTTAKKATTUKARA) SMT.SOUMYA JAMES** ## **RESPONDENT(S)/COMPLAINANT & STATE:** **----------------------------------** **1. M/S.KERALA STATE INDUSTRIAL DEVELOPMENT CORPORATION LTD. (KSIDC), CHOICE TOWERS, MANORAMA JUNCTION, COCHIN 682 016, REPRESENTED BY ITS ASST. GENERAL MANAGER & HEAD (LEGAL) MRS V.R. USHA.** **2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682 031.** ## *** Addl. R3. IS IMPLEADED** ***ADDL.R3 THE REGISTRAR OF COMPANIES, KAKKANAD, ERNAKULAM** *** ADDL.R3 IS IMPLEADED AS PER ORDER DATED 16.02.17 IN CRMA 1818/2017 IN CRLMC 6831/2016** **R1 BY ADVS. SRI.P.U.SHAILAJAN (BY ORDER) SRI.P.U.SHAILAJAN, SC, KSIDC** **R2 BY PUBLIC PROSECUTOR SRI. JUSTIN MATHEW** **R3 BY ADVS. SRI.SUVIN R.MENON, CGC SRI. N.NAGARESH** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 10-07-2017, ALONG WITH CRL.MC. NO. 2906/2017, & CRL.MC.2910/2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **sdr/-** ## **Crl.MC.No. 6831 of 2016 () --------------------------------** ## **APPENDIX** ## **PETITIONER(S)' ANNEXURES** ## **-----------------------------------** **ANNEXURE A1 COPY OF RESIGNATION LETTER DATED 25-09-2012 OF THE 1ST PETITIONER.** **ANNEXURE A2 COPY OF RESIGNATION LETTER DATED 25-09-2012 OF THE 2ND PETITIONER.** **ANNEXURE A3 COPY OF RESIGNATION LETTER DATED 25-09-2012 OF THE 3RD PETITIONER.** **ANNEXURE A4 COPY OF RESIGNATION LETTER DATED 30-09-2012 OF THE 4TH PETITIONER.** **ANNEXURE A5 COPY OF THE EXTRACT OF THE RESOLUTION OF THE MEETING OF THE BOARD OF DIRECTORS HELD ON 25TH SEPTEMBER, 2012.** **ANNEXURE A6 COPY OF THE COMMUNICATION DATED 01-10-2012 TO THE COMPLAINANT BY THE VICE PRESIDENT OF THE 1ST ACCUSED COMPANY.** **ANNEXURE A7 COPY OF FORM 32 SUBMITTED TO THE REGISTRAR OF COMPANIES EVIDENCING RESIGNATION OF PETITIONERS 1 TO 3. ANNEXURE A8 COPY OF FORM 32 SUBMITTED TO THE REGISTRAR OF COMPANIES EVIDENCING RESIGNATION OF THE 4TH PETITIONER. ANNEXURE A9 COPY OF THE COMPLAINT DATED 26-02-2015 FILED BY THE 1ST RESPONDENT BEFORE THE COURT OF THE JUDICIAL MAGISTRATE OF FIRST CLASS, ANGAMALY.** ## **RESPONDENT(S)' ANNEXURES** **------------------------------------------** **ANNEXURE R3(1) TRUE COPY OF FORM 32 PURSUANT TO SECTIONS 303(2) OF COMPANIES ACT, 1956** **ANNEXURE R3(2) TRUE COPY OF FORM 32 PURSUANT TO SECTIONS 303 (2) FIELD WITH REGISTRAR OF COMPANIES OF 29.09.2012.** - **ANNEXURE R3(3) TRUE COPY OF SIGNATORY INFORMATION.** **PA TO JUDGE** **sdr/-** ## ALEXANDER THOMAS, J. ================== Crl.M.C.Nos.6831/2016, 2906/2017 & 2910/2017 ================== ## Dated this the 10[th] day of July, 2017 O R D E R ## Crl.M.C.No. 6831/2016: The four petitioners herein are accused Nos.2, 3, 5 and 6 in the impugned Anx.9 complaint filed by the 1[st] respondent alleging offence punishable under Sec.138 of the Negotiable Instruments Act. The complaint has been taken on file as C.C.No.1172/1015 by the Judicial First Class Magistrate's Court, Angamaly. As per the case set up in the complaint, the drawer of the dishonoured cheque dated 31.12.2014 for Rs.84 lakhs is the 1[st] accused company and that accused 2 to 6 are directors of the company, who were in charge of and responsible for the business of the company at the time of commission of the offence. Accused No.1 is the company and accused No.2 is stated to be the personal incumbent in the office of the managing director of the company, etc. Accused No.4 is stated to be no more. 2. It is stated in Anx.A1 dated 25.9.2012, Anx.A-2 dated 25.9.2012, Anx.A-3 dated 25.9.2012 and Anx.A-4 dated 30.9.2012 are stated to be the resignation letters of the four petitioners from the directorship of the company, which were accepted as per Ext.P-5 Crl.M.C.6831/16 & etc. - : 2 :- resolution dated 25.9.2012 and since, three persons were newly inducted as directors in the place of the petitioners, Anx.A-6 dated 1.10.2012 has been addressed by the erstwhile company of the petitioners to the 1[st] respondent Kerala State Industrial Development Corporation, who is the complainant informing that the petitioners have duly demitted the responsibilities and duties as directors of the company. It appears that the petitioners had also stood as personal guarantee, when loan was taken by the said company from the 1[st] respondent KSIDC and Anx.A-7 is stated to be the Form 32 documents submitted and issued by the Registrar of Companies, in respect of the resignation of the petitioners from the directorship of the company. 3. In impugned Anx.A-9 complaint dated 26.2.2015 it is stated that the 1[st] accused company had availed a term loan from the complainant and towards the defaulted amounts of the loan and interest thereon, the accused had issued the instant cheque dated 31.12.2014 for Rs.84 lakhs, which was dishonoured on 2.1.2015, etc. 4. The main ground on which the plea for quashment of the impugned complaint proceedings has been sought in this petition is that the petitioners had resigned from the directorship of the company and were not in any manner associated with the company at the time of commission of the offence and that the institution of the impugned complaint is nothing but, great abuse of the process of court, etc. Crl.M.C.6831/16 & etc. - : 3 :- 5. The Registrar of Companies, Kerala, was impleaded as additional respondent No.3 in this petition and Sri.N.Nagaresh, learned Assistant Solicitor General has taken notice for additional R-3. Additional R-3 (ROC) has filed an affidavit dated 1.3.2017 before this Court giving the details regarding the resignation of the petitioners. 6. Heard Sri.S.Easwaran, learned counsel appearing for the petitioners, Sri.P.U.Shylajan, learned Standing Counsel for the KSIDC appearing for R-1 (complainant) and Sri.Justin Mathew, learned Prosecutor appearing for R-2 State. 7. It would be profitable to refer to Secs.138 and 141 of the ## Negotiable Instruments Act, which read as follows: 'Sec.138. Dishonour of cheque for insufficiency, etc., of funds in the account.-- Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless - - (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; - (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and - (c) the drawer of such cheque fails to make the payment of the said Crl.M.C.6831/16 & etc. - : 4 :- amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Explanation.-- For the purposes of this section, “debt or other liability” means a legally enforceable debt or other liability.' xxx xxx xxx 'Sec.141.Offences by companies.-- (1) If the person committing an offence under section 138 is a company, every person who, at the time the offence was committed, was in charge 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 all due diligence to prevent the commission of such offence. Provided further that where a person is nominated as a Director of a company by virtue of his holding any office or employment in the Central Government or State Government or a financial corporation owned or controlled by the Central Governemnt or the State Government, as the case may be, he shall not be liable for prosecution under this Chapter. (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 attributable 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 a firm, means a partner in the firm.' 8. Sri.S.Easwaran, learned counsel appearing for the petitioners has contended that the Apex Court and this Court has laid down in clear terms that the offence under Sec.138 of the Negotiable Instruments Act is committed at the time of dishonour of the cheque, even though the other conditions laid down in the proviso to Sec.138 should also be strictly Crl.M.C.6831/16 & etc. - : 5 :- followed for initiating a valid complaint before the criminal court. The petitioners would place reliance on the judgment of this Court in the case Kairali Marketing and Processing C-op. Society Ltd. v. Pullengadi Service Co-op. Society Ltd. reported in 2007 (1) KLT 287, wherein this Court has held that the offence under Sec.138 of the N.I.Act must be held to be committed on the day when the bank on which the cheque is drawn returns the cheque unpaid for the reasons referred to in Sec.138 and that is the specific date/time of commission of the offence and that such dishonour of the cheque is the specific time of the commission of the offence and that the person who has signed the cheque as the Secretary, who was admittedly not the Secretary on the date on which the cheque was returned unpaid by the bank, cannot be held to be in charge of and responsible for the conduct of its affairs on the date when the offence was committed and that the signatory/the then Secretary cannot be prosecuted. It would be profitable to refer paras 24 & 25 of the abovesaid decision reported in 2007 (1) KLT 287, of this Court, which read as follows: “24. So reckoned, the offence under S.138 of the N.I.Act must be held to be committed on that date when the bank on which the cheque is drawn returns the cheque unpaid for the reasons referred to in S.138. That is the specific date/time of commission of the offence. Any interpretation which will make the date of commission of the offence uncertain is bound to create confusion when we attempt to work the law by interpreting S.138 and 141 of the N.I.Act. I therefore come to the conclusion that the offence under S.138 of the N.I.Act can be held to be committed only on the date when the cheque is returned unpaid by the bank. 25. If that be so, the person who has signed the cheque as the Crl.M.C.6831/16 & etc. - : 6 :- Secretary who was admittedly not the Secretary on the date on which the cheque was returned unpaid by the bank cannot be held to be in charge of and responsible to the company for the conduct of its affairs on the date when the offence was committed. Therefore the signatory/the then Secretary cannot be prosecuted under S.138 read with S.141 of the N.I.Act. The petitioners herein can hence claim no benefit or advantage on account of the conduct of the complainant not prosecuting the then Secretary/signatory of the cheque. The challenge raised on this ground must hence fail.” It is also noted that the Apex Court in the Three Judge Bench decision in Dasarath Rupsingh Rathod v. State of Maharashtra & anr. reported in (2014) 9 SCC 129, has placed reliance on the abovesaid decision of this Court in Kairali Marketing and Processing Co-op. Society Ltd. v. Pullengadi Service Co-op. Society Ltd. reported in 2007 (1) KLT 287, as can be seen from a reading of paras 57 & 58 of the Apex Court decision in Dasarath Rupsingh Rathod 's case, which read as follows: '57. The High Court of Kerala has, in our view, correctly interpreted Section 138 of the Act in Kairali Mktg. & Processing Coop. Society Ltd. v. Pullengadi Service Coop. Society Ltd. when it said: (KLT pp. 293 & 295-96, paras 18 & 23) _“18. It is evident from the language of Section 138 of the NI Act that the drawer is deemed to have committed the offence when a cheque issued by him of the variety contemplated under Section 138 is dishonoured for the reasons contemplated in the section. The crucial words are ‘is returned by the bank unpaid’. When that happens, such person shall be deemed to have committed the offence. With the deeming in the body of Section 138, the offence is already committed or deemed to have been committed. A careful reading of the body of Section 138 cannot lead to any other conclusion. Proviso to Section 138 according to me only insists on certain conditions precedent which have to be satisfied if the person who is deemed to have committed the offence were to be prosecuted successfully. The offence is already committed when the cheque is returned by the bank. But the cause of action for prosecution will be available to the complainant not when the offence is committed but only after the conditions precedent enumerated in the proviso are satisfied. After the offence is committed, only if the option given to avoid the prosecution under the proviso is not availed of by the offender, can the aggrieved person get a right or course of action to prosecute the offender. The offence is already deemed and declared but the offender can be prosecuted only when the requirements of the proviso are satisfied. The cause of action for prosecution will arise only when the period stipulated in the_ - : 7 :- Crl.M.C.6831/16 & etc. _proviso elapses without payment. Ingredients of the offence have got to be distinguished from the conditions precedent for valid initiation of prosecution._ **==> picture [77 x 5] intentionally omitted <==** _23. …The stipulations in the proviso must also be proved certainly before the offender can be successfully prosecuted. But in the strict sense they are not ingredients of the deemed offence under the body of Section 138 of the NI Act, though the said stipulations must also be proved to ensure and claim conviction. It is in this sense that it is said that the proviso does not make or unmake the offence under Section 138 of the NI Act. That is already done by the body of the sections. This dispute as to whether the stipulations of the proviso are conditions precedent or ingredients/components of the offence under Section 138 of the NI Act may only be academic in most cases. Undoubtedly the ingredients stricto sensu as also the conditions precedent will have to be established satisfactorily in all cases. Of course in an appropriate case it may have to be considered whether substantial compliance with the conditions precedent can be reckoned to be sufficient to justify a conviction. Be that as it may, the distinction between the ingredients and conditions precedent is certainly real and existent. That distinction is certainly vital while ascertaining complicity of an indictee who faces indictment in a prosecution under Section 138 with the aid of Section 141 of the NI Act. That is how the question assumes such crucial significance here.”_ (emphasis in original) 58. To sum up: 58.1. An offence under Section 138 of the Negotiable Instruments Act, 1881 is committed no sooner a cheque drawn by the accused on an account being maintained by him in a bank for discharge of debt/liability is returned unpaid for insufficiency of funds or for the reason that the amount exceeds the arrangement made with the bank. 58.2. Cognizance of any such offence is however forbidden under Section 142 of the Act except upon a complaint in writing made by the payee or holder of the cheque in due course within a period of one month from the date the cause of action accrues to such payee or holder under clause (c) of proviso to Section 138. 58.3. The cause of action to file a complaint accrues to a complainant/payee/holder of a cheque in due course if (a) the dishonoured cheque is presented to the drawee bank within a period of six months from the date of its issue, (b) if the complainant has demanded payment of cheque amount within thirty days of receipt of information by him from the bank regarding the dishonour of the cheque, and (c) if the drawer has failed to pay the cheque amount within fifteen days of receipt of such notice. 58.4. The facts constituting cause of action do not constitute the ingredients of the offence under Section 138 of the Act. 58.5. The proviso to Section 138 simply postpones/defers institution of criminal proceedings and taking of cognizance by the court till such time cause of action in terms of clause (c) of the proviso accrues to the complainant. Crl.M.C.6831/16 & etc. - : 8 :- 58.6. Once the cause of action accrues to the complainant, the jurisdiction of the court to try the case will be determined by reference to the place where the cheque is dishonoured. 58.7. The general rule stipulated under Section 177 CrPC applies to cases under Section 138 of the Negotiable Instruments Act. Prosecution in such cases can, therefore, be launched against the drawer of the cheque only before the court within whose jurisdiction the dishonour takes place except in situations where the offence of dishonour of the cheque punishable under Section 138 is committed along with other offences in a single transaction within the meaning of Section 220(1) read with Section 184 of the Code of Criminal Procedure or is covered by the provisions of Section 182(1) read with Sections 184 and 220 thereof.” Thus it can be seen that the Apex Court has clearly upheld the correctness of the reasonings of this Court in the judgment in Kairali Marketing and Processing Co-op. Society Ltd. v. Pullengadi Service Coop. Society Ltd. reported in 2007 (1) KLT 287 and so it is crystal clear that offence under Sec.138 of the N.I.Act is committed at the time of the dishonour of the cheque by the bank from which the cheque is drawn. 9. Additional respondent No.4 (ROC, Kerala) has sworn to an affidavit dated 1.3.2017. It will be profitable to refer to paras 5 and 6 of the said affidavit, which reads as follows: “5. Petitioner No.(1) to (3) are seen to have resigned from the Board of Directors with effect from 25.09.2012. Form No.32 pursuant to Section 303(2) have been filed with Registrar of Companies on 29.09.2012. Copy of the same along with attachments viz., 5 resignation letters are produced herewith and marked as Annexure R3 (2). The said document is intimation regarding changes among 5 directors including petitioners (1) to (3) herein. Even though 5 resignation letters pertaining to the above 5 directors are filed as attachments to the said Form 32, in respect of Petitioner No:1, name and signature in the resignation letter is not clear. So also in respect of petitioner No.2, document does not bear the name of signatory. That being so, it is submitted that R3(2) document is duly authenticated by one of the directors authorized by the Board of Directors and is also certified by a Company Secretary. As such the same bears prima facie evidence regarding their cessation. Crl.M.C.6831/16 & etc. - : 9 :- 6. It is submitted that subsequent to the above said dates viz, 30.09.2010 in the case of 4[th] petitioner and 25.09.2012 in the case of petitioner (1) to (3), there are no documents to show that the petitioners herein have been re-appointed as directors. Further the company has filed all its statutory returns including the financial year 31.03.2016. The above said returns and intimations regarding change in in directors filed by the company in form 32/DIR 12 as the case may be show that the petitioners herein have not functioned as a director in the Board of Director of the company after the date of cessation specified in paragraphs (4) & (5) above.” From a reading of the abovesaid affidavit, it can be seen that there are materials and documents with the Registrar of Companies, by which it can be seen that the petitioners had ceased to be the members of the board of directors of the company with effect from 30.9.2010 and that form No.32 statements have been filed by the ROC on 8.3.2011, intimating such cessation, with effect from 30.9.2010. 10. Para 6 of the affidavit would also show that the petitioners have never functioned as the directors of the company thereafter, after the cessation. Even as per the case set up by the complainant, the dishonoured cheque has been issued on 31.12.2014 and it was dishonoured by the bank concerned on 2.1.2015. Therefore, from the abovesaid documents of the ROC, which are of sterling and impeccable quality, it is clear that the petitioners were not in any manner associated with the functioning of the said company at the time of the dishonour of the cheque on 2.1.2015. In the light of these aspects, it is only to be held that the institution of the impugned criminal proceedings against the petitioners would be nothing but abuse of the process of the court. In that view of the matter, the Crl.M.C.6831/16 & etc. - : 10 :- impugned criminal proceedings which led to the institution of C.C.No.1172/2015 on the file of the Judicial First Class Magistrate's Court, Angamali, to the extent the four petitioners herein have been arrayed accused 2, 3, 5 and 6 therein and all further proceedings taken in pursuance thereof, will stand quashed. It is made clear that it will be open to the complainant to proceed with the complaint as against accused No.1, in accordance with law. With these observations and directions, the aforecaptioned Crl.M.C. stands finally disposed of. Crl.M.C.Nos.2906/2017 & 2910/2017: 11. The issue in these 2 criminal cases is broadly similar to that dealt with hereinabove in Crl.M.C.No.6831/2016. The two petitioners in Crl.M.C.No.2906/2017 are the two petitioners in Crl.M.C.No. 2910/2017. 12. In Crl.M.C.No.2906/2017 there are 2 dishonoured cheques, one of which is dated 16.8.2009 for Rs.2 lakhs and the other is dated 20.8.2009 for Rs.3 lakhs and the dishonour memos of both the cheques is issued on 25.8.2009. In Crl.M.C.No.2910/2017, the dishonoured cheque is dated 5.8.2009 for Rs.3 lakhs and dishonoured memo is seen issued on 10.8.2009. The case projected in both the complaints is that the dishonoured cheques in question have been issued from the respective cheques drawn from the accounts maintained by the 1[st] accused chit company and that the petitioners and the other accused were directors, who were in charge of and responsible for the affairs of Crl.M.C.6831/16 & etc. - : 11 :- the business of the company at the time of the commission of the offence. The case of the petitioners is that though they were initially directors of the 1[st] accused company, they had resigned from the directorship of the company as early as on 25.8.2008 as evident from Anx.2, which was accepted by the board of directors of the company and Form 32 statements were also filed by the petitioners before the Registrar of Companies, Kerala, in terms of Anxs.3 and 4, which would also conclusively prove that the petitioners had ceased to be the directors of the company with effect from 25.8.2008. The Registrar of Companies has been impleaded as additional respondent in these cases and the said additional respondent was also directed to file separate affidavits in both these cases. Sri.B.Ramachandran, learned Central Government Counsel has taken notice for the said additional respondent (ROC, Kerala) and the said party has filed 2 separate affidavits in both these matters. In the said affidavits it is clearly stated that the 2 petitioners were initially members of the board of directors of the said company and that Form 32 statement dated 6.9.2008 was filed before the ROC, which shows that the 2[nd] petitioner, Sri.P.J.Varghese, has ceased to be a director of the company on 25.8.2008 and further Form 32 statement dated 9.9.2008 was also filed by the 1[st] petitioner, Sri.V.J.Vincent, which also shows that he ceased to be a director of the said company on 25.8.2008. It is also stated that totally there are 10 directors in the board of directors of the Crl.M.C.6831/16 & etc. - : 12 :- company and that out of which, 2 petitioners herein have subsequently resigned on 25.8.2008 and are not seen reappointed. The relevant documents in that regard have also been produced as Exts.R-12(a) and R-12(b) respectively. Therefore, the said materials placed by the additional respondent (ROC) are certainly materials of unimpeachable and sterling quality, which would clearly show that the 2 petitioners had demitted office as directors of the company long prior to the date of dishonour of the cheque. In the light of the abovesaid rulings in Kairali Marketing and Processing C-op. Society Ltd. v. Pullengadi Service Coop. Society Ltd. reported in 2007 (1) KLT 287 and Dasarath Rupsingh Rathod v. State of Maharashtra & anr. reported in (2014) 9 SCC 129, it is now well settled that the day on which the offence under Sec.138 of the Negotiable Instruments Act is committed is at the time of the dishonour of the cheque. The petitioners have been sought to be implicated purportedly on the basis of the vicarious liability envisaged under Sec. 141 of the N.I. Act. Sub section (1) of Sec.141 clearly mandates that only those persons can be so implicated if they were in charge of, and were responsible to the company for the conduct of the business of the company, at the time the offence is committed. Since the petitioners were not in any manner associated with the company at the time of dishonour of the cheques, it is only to be held that the institution of the impugned criminal proceedings against the petitioners herein is nothing Crl.M.C.6831/16 & etc. - : 13 :- but an abuse of the process of the court. Accordingly, it is ordered as follows: - (i) The complaint in S.T.No.7205/2010 on the file of the Judicial First Class Magistrate's Court-III, Thrissur, to the extent to which the petitioners have been arrayed as accused 10 & 11 and all further proceedings taken in pursuance thereof will stand quashed. - (ii) The impugned complaint in C.C.No. 56/2010 on the file of the Judicial First Class Magistrate's Court-I, Thrissur, to the extent to which the two petitioners herein have been arrayed as accused 10 & 11 therein and all further proceedings taken in pursuance thereof, will stand quashed. - (iii) It is made clear that the abovesaid trial courts shall proceed with the trials in respect of the abovesaid complaints in respect of the other accused, in accordance with law. With these observations and directions, the aforecaptioned Crl.M.Cs. stand finally disposed of. sdk+ Sd/ALEXANDER THOMAS, JUDGE ///True Copy/// P.S. to Judge