Kanchan Chakraborty, J.This application u/s 482 of the Code of Criminal Procedure has been taken out by Smt. Rama Garg and Gyan Swaroop Garg praying for quashing of the proceeding, being C.-803 of 1999 u/s 138 read with Section 141 of the Negotiable Instruments Act pending in the Court of the learned; Metropolitan Magistrate, Calcutta mainly on the ground that the petitioner No. 1 simply being a Director of the Accused No. 1 Company, cannot be prosecuted under the Act without any specific averment in the petition of complaint against her and the petitioner No. 2 is a man having no connection, whatsoever, with the accused No. 1 company and in the matter of cheque in dispute. On 09.03.1999, the petition of complaint was filed in the Court of the learned Chief Metropolitan Magistrate, which was registered as C-803 of 1999. It was alleged therein by the complainant Ratan Kumar Jasrapuria that accused No. 4, i.e., Gyan Swaroop Garg (petitioner No. 2 herein) carries on business under the name and style of M/s. G.G. Consultants and the petitioner No. 1, Rama Garg is his wife and Raj Kumar Mondal and Rama Garg are the Directors of Rakaman Chemicals (India) Pvt. Ltd. It has been further averred that on 02.04.1997, the complainant advanced a sum of Rs. 4 lacs to the petitioner No. 2, Ram Swaroop Garg and against that loan, the petitioner No. 1, Rama Garg and accused Raj Kumar Mondal stood as sureties. On 20.12.1997, the petitioner No. 2 Ram Swaroop Garg issued a cheque of his Firm, G.G. Consultants, of a sum of Rs. 1 lac as part payment of the loan. However, that cheque was dishonoured due to lack of funds. The complainant informed Raj Kumar Mondal, Rama Garg and Gyan Swaroop Garg about dishonour of the cheque and repayment of loan. Upon such demand, the petitioner No. 1, Rama Garg and accused, Raj Kumar Mondal issued one cheque of the Rakaman Chemicals (India) Pvt. Ltd. of Rs. 1 lac dated 15.07.1998 in favour of the complainant firm drawn on Punjab National Bank, Kalighat Branch. That cheque was presented for encashment, but, ultimately dishonoured with remark "Stop Payment". A legal notice was served on the petitioners and Raj Kumar Mondal as well as Rakaman Chemical (India) Pvt. Ltd. but, cheque amount was not paid within 15 days from the date of receipt of notice. Accordingly, a prosecution was initiated.

2. The learned Magistrate has taken cognizance of the petition of complaint and transferred the same for enquiry and disposal to the 9th Court of the learned Metropolitan Magistrate. The petitioners Rama Garg and Gyan Swaroop Garg has come up with this application praying for quashing of the proceeding on the ground already stated.

3. Mr. Ayan Bhattacharyya, learned counsel appearing on behalf of the opposite parity, Ratan Kumar Jasrapuria, contends that this application is not maintainable because on earlier two occasions the same prayer for quashing of the proceedings was rejected by this Court on merit. Therefore, this third attempt is made in order to review of the order passed by this Court, which is not permissible in law. In support of his submission Mr. Bhattacharyya refers to the decisions of the Honble Apex Court in State rep. by D.S.P., S.B.C.I.D., Chennai Vs. K.V. Rajendran and Others, and R. Annapurna Vs. Ramadugu Anantha Krishna Sastry and Others, . He also submits that this petition is not maintainable on the ground that the petitioners have suppressed the fact that they had taken out two successive applications earlier u/s 482 of the Code of Criminal Procedure for quashing of the proceeding, which were dismissed by this Court. He refers to the decision also in support of his contention reported in Dalip Singh Vs. State of U.P. and Others,

4. Mr. Dey, learned advocate appearing on behalf of the petitioners, contends that there is no legal bar to file successive application u/s 482 of the Code of Criminal Procedure. It is true, he submits, that Section 482 of the Code of Criminal Procedure is not to be used for the purpose of review or revision of earlier order passed by this Court. He also submits that if any fresh circumstance comes to exist, an application for quashing of the proceeding u/s 482 of the Code of Criminal Procedure can well be filed despite the fact that earlier applications were rejected by this Court. In this case, according to him, after passing the decision by the Honble Apex Court in S.M.S. Pharmaceuticals Ltd. Vs. Neeta Bhalla and Another, S.M.S. Pharmaceuticals Ltd. Vs. Neeta Bhalla and Another, , in K.K. Ahuja Vs. V.K. Vora and Another, and National Small Industries Corp. Ltd. Vs. Harmeet Singh Paintal and Another, , the entire legal position prevailing earlier was changed. The views taken recently by the Honble Apex Court altogether makes it clear that in order to prosecute director of a. company for an offence u/s 138 of the Negotiable Instruments Act, the petition of complaint should contain specific averments against that Director showing his her involvement in the alleged offence or day-to-day business of the company. At the time the earlier application were filed, the said view was not prevailing and, as such, a fresh circumstance has arisen, whatsoever, which, in fact, motivated the petitioners to take out this application.

5. The contention of Mr. Bhattacharyya and counter-contention of Mr. Dey, in fact, appears to be very academical. There cannot be any room of doubt that the strict view taken by the Court earlier has been changed to some extent. This is also a settled position of law that dismissal of a previous application is not a bar to file a second one and, in a case where a fresh circumstance conies to exist. According to Mr. Dey, the new circumstance comes to exist because of the changed view taken by the Honble Court. Whether this change can be categorized as a circumstance or not, is fallacious. However, for the sake of argument, this Court accepts the same as a fresh circumstance to give the petitioners a right to file an application afresh, especially when there is no impediment under the Code of Criminal Procedure to take out a second application u/s 482 of the Code of Criminal Procedure and no review or revision of the earlier order is sought for.

6. It is trite law that a criminal prosecution cannot be quashed in case where a prima facie case is made out in the petition of complaint. In other words, if the allegations and aspersions made in the petition of complaint are accepted on their face value and uncontroverted, makes out no case against the accused, Court can quash a proceeding exercising its power u/s 482 of the Code of Criminal Procedure. There is no scope for the High Court to probe deep into evidence or write the fate of the case posing itself to be the Trial Court. This power is to be exercised sparingly and in very exceptional cases.

7. The entire thing can possibly be properly judged if the petition of complaint is read carefully. The petition of complaint shows that the loan was taken by Gyan Swaroop Garg, the petitioner No. 2, amounting to Rs. 4 lacs in the name of his company, M/s. G.G. Consultants. M/s. G.G. Consultants is not made an accused in this case. But, Gyan Swaroop Garg has been made an accused. Cheque in question was issued by Raj Kumar Mondal and Rama Garg using the name of their Company, Rakaman Chemicals (India) Pvt. Ltd. That cheque was the subject matter of the prosecution initiated by the opposite party, Ratan Kumar Jasrapuria. No where within the four corners of the petition of complaint it has been stated that the petitioner, Gyan Swaroop Garg had any connection with the accused No. 1 Company, Rakaman Chemicals (India) Pvt. Ltd. It is nowhere also averred within the four comers of the petition of complaint that he was Director of the company or that is responsible for the day-today work of the company, Rakaman Chemical (India) Pvt. Ltd. The responsibility to discharge debt and liability, whatever it might be, arisen out of a loan taken by Gyan Swaroop Garg, but was taken over by Rama Garg and Raj Kumar Mondal on behalf of the Rakaman Chemicals (India) Pvt. Ltd. Therefore, this Court does not find as to why Gyan Swaroop Garg has been made an accused u/s 138 of the Negotiable Instruments Act.

8. However, the petition of complaint clearly avers that Raj Kumar Mondal and Rama Garg issued a cheque on behalf of the Rakaman Chemicals (India) Pvt. Ltd., which is the subject matter of prosecution, and, for which demand notice was sent. Cause of action had arisen for non-payment of that cheque amount obviously by the said two accused persons and the accused No. I company.

9. Mr. Dey, learned advocate for the petitioners, by referring the decision of the Honble Apex Court in National Small Industries Corporation Limited (supra) submits that there should be specific averment, as are required under the law, in the petition of complaint so as to make the petitioner, Rama Garg, vicariously liable. In absence of such specific averment, prosecution against such a director is to be quashed.

10. There is no dispute as to the legal proposition propounded by the Honble Apex Court in this regard. The petition of complaint clearly reveals that the petitioner No. 1, Rama Garg, was one of the signatories of the cheque in dispute. This Court has stated already that at the time of quashing of a proceeding u/s 482 of the Code of Criminal procedure, High Court is not supposed to judge the truthfulness or falsity in the averment which is the domain of the Trial Court. Whether the cheque in question was issued by Rama Garg is a question to be decided by the learned Trial Court subject to strict proof by the complainant. When the petition of complaint clearly avers that Rama Garg was one of the signatories of the cheque in question, her participation in the alleged offence is, prima facie, established for the purpose of issuing process u/s 204 of the Code of Criminal procedure. That being so, this Court declines to quash the proceeding against her. However, this Court finds that Gyan Swaroop Garg has been prosecuted without any reason in this case and there is nothing in the petition of complaint which shows that he is in any way connected with the accused No. 1 company and has taken the liability to repay the loan on behalf of Rakaman Chemicals (India) Pvt. Ltd. The responsibility to discharge that liability was taken by Rama Garg and Raj Kumar Mondal on behalf of Rakaman Chemicals (India) Pvt. Ltd. wherein Gyan Swaroop Garg was not attached to. Therefore, I accept his claim and direct that the proceeding against him be quashed.

11. This application stands disposed of with a direction upon the learned Magistrate to proceed with the trial without delay against the accused Nos. 2 and 3.

12. There will, however, be no order as to costs. Interim order, if there be any, stands vacated.

Let urgent photostat certified copy of this order, if applied for, be given to the learned advocates for the parties upon compliance of necessary formalities.