TMI Blog1994 (8) TMI 318X X X X Extracts X X X X X X X X Extracts X X X X ..... ice dated June 8, 1993, demanding payment of the amount, that the notices were sent both by registered post acknowledgment due as well as by certificate of posting to both the accused, that while the first accused received the notice the second-accused refused the same, that the first accused sent a reply in which he admitted the issuance of the cheque but made other false allegations and that as the accused had failed to pay the amount in spite of the notice they have committed offence under section 138 of the Act and also under section 420 of the Indian Penal Code. 3. The Magistrate, after recording the sworn statement of the complainant and after perusing the complaint and the sworn statement as well as documents, issued summons to both the accused persons. Learned counsel for the petitioner has urged the following grounds in support of the petition : (1) The Magistrate has taken cognizance of the offence after recording the sworn statement which is illegal and it vitiates the proceedings. (2) The notices as well as the cheque produced along with the complaint would show that it was the partnership firm which had issued the cheque and as such it is the firm whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fter the statement of the complainant was recorded. But as the Magistrate had, on the very day the complaint was filed, directed that it should be registered and put up before him and when it was put up before him he has examined the complainant on two occasions, would indicate that he had by those acts already taken cognizance of the offence. In fact in State v. Papireddy this court has referred to an earlier decision in D. P. Sharma v. C. R. Gandha [1982] 2 KLC 358 That was also a case where the magistrate made a note on the complaint itself stating that the complaint was presented at 3 p.m. and directing that it be registered as P.C. and be called on February 6, 1980. That endorsement was interpreted by this court as showing that the magistrate had applied his mind to the contents of the complaint and that, therefore, he adjourned the case for recording the sworn statement of the complainant as required under section 200, Criminal Procedure Code. It was also held that those facts leave no doubt in the mind of the court that the magistrate did apply his mind to the contents of the complaint and found that it was a fit case for taking cognizance. In the present case also the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... complaint does not indicate that the offence is committed by the firm that the accused are being prosecuted as persons who were in charge of and were responsible to the firm for the conduct of the business and that as such the complaint as framed is not at all maintainable. It is no doubt true that the firm as such is not arrayed as an accused. The two persons who are arrayed as accused are described as hereunder : (1) V. V. Samnath, Vikas Services, Partner, 1st Floor, III Cross, B.T.S. Road, Wilson Garden, Bangalore-27. (2) Surendra Shetty, Vikas Services, Partner, 1st Floor, III Cross, B.T.S. Road, Wilson Garden, Bangalore-27. 9. The description of the two accused persons shows that they are being prosecuted because they are the partners of Vikas Services. Though in the complaint it is not specifically alleged that the accused as partners of the firm had placed orders or that the accused had issued the cheque as partners of the firm, the documents filed along with the complaint clearly indicate this position. In fact it is on the basis of the documents which had been filed by the complainant in the trial court that learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plaint is attributable to the failure of the industrial unit to furnish the requisite information called for by the board. Furthermore, the legal infirmity is of such a nature which could be easily cured. Another circumstance which brings out the narrow perspective of the learned single judge is his failure to appreciate the fact that the averment in paragraph 2 has to be construed in the light of the averments contained in paragraphs 17, 18 and 19 which are to the effect that the chairman, vice-chairman, managing director and members of the board of directors were also liable for the alleged offence committed by the company. 12. In the above case, the Supreme Court has only observed that the proposition may be correct in the abstract, but it has not laid down specifically that no prosecution against the persons in charge of and responsible to the company for the conduct of the business can be prosecuted without the company itself being prosecuted. It may also be noted that the Supreme Court has said that the legal infirmity, if any, can be easily cured. It is open to the magistrate under section 319 of the Criminal Procedure Code, if he finds that the company has committed the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, it cannot be contended that the persons who were in charge of and were responsible to the company for the conduct of the business cannot be prosecuted for the offence committed by the company without the company itself being prosecuted. As such, the contention of learned counsel for the petitioner that as the offence is committed by the firm, the petitioner cannot be prosecuted without the firm being arraigned as an accused, cannot be accepted. Another contention that was urged by learned counsel for the petitioner was that under section 138, notice giving 15 days' time for payment ought to have been issued and that as in this case the complainant had issued a notice demanding the amount within a week, the notice is invalid and consequently no offence under section 138 is made out. He relied on the judgment of the Punjab and Haryana High Court in Embee Textiles Ltd. v. Sadhu Ram and Co. [1993] 1 BC 68 He has only produced the gist of the judgment. In the headnote, it is stated that under section 138, the notice of demand should give 15 days to pay, whereas in the notice under reference 30 days' time had been given and that as such, it was not a proper notice and that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t within that period. The payee cannot lodge a complaint after the completion of one month from the date the cause of action arose as there is a bar under section 142(b). To comply with clause (b) of the proviso to section 138, it is not at all necessary for the payee to specify any time in the notice for making payment. Even if he specifies a time lesser than 15 days, the statute gives the drawer time of 15 days for making payment and if he pays that amount within 15 days of the receipt of the notice, the offence would not be committed. For the purpose of this case, it is not necessary to consider the question as to what would be the consequence if the payee voluntarily gives more than 15 days for payment while issuing the notice. In the case referred to above, the notice had given 30 days time for payment and possibly that may be the reason why that notice was held invalid. But in the present case, the fact that the notice gives 7 days time for payment does not render it invalid. After considering all questions raised in this petition, I do not find any good ground to quash the proceeding. This petition is rejected. 15. However, it is made clear that any observations made b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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