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2019 (9) TMI 1540 - HC - Indian LawsDishonor of Cheque - issuance of notice to applicant who resigned from his post and ceased to be Director - HELD THAT:- The NI Act draw a succinct distinction between the provisions of Section 138 and Section 141. Merely because a Director of a Company can be vicariously held liable for the offence committed by the Company by relying on Section 141 of the Act, the plain reading of Section 138 and sub-Sections (b) and (c) appended to the proviso do not admit of a situation where it is a requirement of drawee issuing a notice to every Director of the Company who was in carge and responsible to the Company for conduct of its business. This requirement of issuance of notice to an individual Director in terms of sub-clause (b) of proviso to Section 138 cannot be read into the said provision. Merely on an assumption that when a notice is issued to the Director and then the Director would necessarily inform the Company of such a notice being received, do not make it imperative for a drawer to issue a notice to any other person other than the drawer of the cheque. It is settled position of law that when a statute requires a particular thing to be done in a particular manner, then that must be performed in the same manner and not in any other manner. In such circumstances, in the absence of the notice being issued to the Company, which is the drawer of the cheque in question, the invocation of proceedings under Section 138 of the NI Act must necessarily fail in the absence of the statutory compliance of sub-clause (b) of the proviso appended to Section 138. In any contingency, the Applicant is also entitled to avail the benefit under Section 141 of the NI Act since it is an admitted position that he was not a Director, and, therefore, not in control of the affairs of the Company on the date when the cheque was presented i.e. on 31/01/2017 and on the said date, he had already ceased to be the Director of the Drawer Company. In the absence of the drawer i.e. the Company being issued with a notice as contemplated in Clause (b) of proviso to Section 138 before initiation of complaint under Section 138, the impugned order cannot be sustained. Application allowed.
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