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2020 (11) TMI 502 - HC - Indian LawsDishonor of Cheque - petitioner challenges the composite order taking cognizance and issuing summons on the grounds that there is no proof as to when the notice under Section 138 of the Negotiable Instruments Act read with Section 141 of the Negotiable Instruments Act was served upon these petitioners - main contention raised by the petitioner is that the complainant in his complaint petition, has not stated as to when notices under Section 138 of the Negotiable Instruments Act was served upon the petitioners. HELD THAT:- The deeming fiction in respect of service of notice is applicable in respect of notice under Section 138 of the Negotiable Instruments Act also if the notice is properly and correctly addressed. In this context, it is to be noted that it is not the case of the petitioners that the notice so issued is not properly or correctly addressed - the grounds taken by the petitioner has got no legs to stand. The notice is deemed to have been served upon the petitioner. Another ground taken by the petitioners is that the petitioner No.3 is a sleeping partner and has got nothing to do with the day to day affairs of the business and merely putting the words in the complaint that she was incharge of the day to day activity is not sufficient to take cognizance. Section 141 of the Negotiable Instruments Act does not make all the persons and directors liable for the offence. Criminal liability has been fastened on those, who at the time of commission of offence, were in charge of, and were responsible to the firm for the conduct of the business of the firm. There may be cases where the partners are sleeping partners or directors, who are not required to take part in the business, they may be ladies and those, who know nothing about the business. The accused No.2 and 3 are directors of the company, who are responsible for and looking after day to day affairs of the business - the complainant has discharged their onus in terms of Section 141 of the Negotiable Instruments Act. Now it is the accused, who have to rebut the same by cogent evidence. Before this Court, at this stage, save and except only the oral submission, no impeachable material has been brought on record by the petitioners to suggest that the petitioner No.3 is not responsible and also is not looking after the day to day affairs of the company. In absence of any materials, at this stage, to give a finding in favour of the accused is not proper. It is well settled principle that when prima facie an offence is made out, a criminal proceeding cannot be quashed at the very threshold. In these cases, the cheques were issued in favour of the complainant, whose payments were stopped. Admittedly, notices were sent, which were deemed to have been served. Admittedly, the amount involved in each cheque was not paid - Since the cheques were issued by accused No.2, he has been summoned / noticed. Since accused No.3 is a director and it has been mentioned in the complaint petitions that she is also looking after the day to day affairs of the company, by application of Section 141 of the Negotiable Instruments Act notice has also been issued to her. There are no illegality in the impugned orders in all these cases, by which cognizance has been taken and the petitioners have been summoned in all these cases - petition dismissed.
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