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2024 (5) TMI 793 - DELHI HIGH COURTDishonour of Cheque - vicarious liability - demand notice not addressed to the petitioners in their individual capacity - Proviso (b) to Section 138 of the NI Act - proceedings can be initiated against all the Trustees of a Trust or not - Section 141 of the NI Act - HELD THAT:- Proviso (b) to Section 138 of the NI Act read with Section 142 of the NI Act shows that for the maintainability of a complaint for an offence under Section 138 of the NI Act, the payee or the holder in due course of the cheque, as the case may be, should make a demand for the payment of the said amount of money by giving a notice in writing ‘to the drawer of the cheque’ within 30 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid. The notice, therefore, is to be given ‘to the drawer of the cheque’ - In the present cases, the cheques are drawn by the accused no. 2 Trust. It is, therefore, the ‘drawer of the cheques’. The notice has, admittedly, been issued to the ‘drawer’, that is, the accused no. 2- Trust. The same has been addressed to be served on the drawer/Trust through its Trustees. Presently, it is not disputed by the petitioners that they are the Trustees of the accused No. 2-Trust. Section 141 of the NI Act states that where the offence under Section 138 of the NI Act is committed by a company, every person who, at the time the offence was committed, was in-charge and was responsible to the company for the conduct of the business of the company, shall be ‘deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly’ - the only plea of the petitioners is the lack of notice under Proviso (b) to Section 138 of the NI Act and the purported lack of pleadings in the Complaint Cases against the petitioners herein in their individual capacity. In Kirshna Texport and Capital Markets Ltd. [2015 (6) TMI 344 - SUPREME COURT] the Supreme Court, considering the provision of Proviso (b), Section 141 and Section 7 of the NI Act has held 'Section 138 of the Act does not admit of any necessity or scope for reading into it the requirement that the Directors of the Company in question must also be issued individual notices under Section 138 of the Act. Such Directors who are in charge of affairs of the Company and responsible for the affairs of the Company would be aware of the receipt of notice by the Company under Section 138. Therefore, neither on literal construction nor on the touchstone of purposive construction such requirement could or ought to be read into Section 138 of the Act.' The above judgment would squarely apply to the facts of the present cases. There is no requirement for separate notice(s) to be issued to each of the Trustees of the accused no. 2-Trust to make them vicariously liable and to be proceeded against in terms of Section 138 of the NI Act read with Section 141 of the NI Act. The notice having been served on the Trust through its Trustees, all the Trustees are deemed to have been duly served with the legal/demand notice(s), thereby meeting the requirement of Proviso (b) to Section 138 of the NI Act. The averments are sufficient for the purpose of attracting Section 141 of the NI Act against the petitioners. Even otherwise, in their capacity as Trustees of the accused no. 2, the petitioners are officers in charge of the Trust. The petitioners shall have to lead their defence under Section 141 of the NI Act, in case they are to escape their liability as the Trustees of the accused no. 2- Trust, who is the drawer of the cheque(s) in question. Such defence is not to be considered by this Court or the learned Trial Court at this stage. There are no merits in the present petitions. The same are, accordingly, dismissed.
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