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2015 (7) TMI 1379 - HC - Indian LawsDishonor of Cheque - maintainability of petition in the absence of notice under Section 138 of the Negotiable Instruments Act to the petitioner - HELD THAT:- Making of a demand by giving a notice is sina-qua-non and it is only thereafter that the complainant can be maintained, that too after it is proved that the notice of such demand was served or deemed to have been served upon the sendee. Offences by the company has been separately dealt with under Section 141 of the "Act", which essentially means that the offences committed by the company is different from the once which have been committed by its employees. In such situation the company is deemed to be the principal offender and the remaining persons are made offenders by virtue of legal fiction created by the legislature as per the Section, hence the actual offence should have been committed by the company. If that was so, then the notice as mandatorily required under Section 138 ought to have been served upon the company, but in the instant case undisputedly the notice has been served only upon its incharge and authorized signatory Sh. Vijay Kumar. The learned trial Magistrate has failed to take into consideration this distinction, which vitiate the entire proceedings as the Company can only be tried, in case there is a notice served upon it, that too after satisfying the provisions of Section 141(1) of the Act, but the Company in no event can be prosecuted in absence of a legal and valid notice to this effect as envisaged under the Act - the proceedings initiated by the learned Magistrate on the basis of complaint case under NIA Act is quashed for want of legal and valid notice. Petition allowed.
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