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TMI Blog2017 (6) TMI 25X X X X Extracts X X X X X X X X Extracts X X X X ..... sued, amongst others, under his signatures, he being an authorised signatory. The said cheque was admittedly presented by the drawee Frick India Ltd. (complainant / second respondent herein) in its bank on 22.01.2002 for encashment but was returned on the next day (i.e. 23.01.2002) unpaid with remarks "funds insufficient". The drawee of the cheque, Frick India Ltd. through its authorized representative instituted a criminal complaint in the court of the Additional Chief Metropolitan Magistrate (ACMM), Patiala House Courts, New Delhi on 22.03.2002 alleging offence under Section 138 of the Negotiable Instruments Act, 1881 seeking prosecution of the said company and its various directors including the petitioner shown in the array as the third ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceedings, some undisputed facts germane to the prayer made before this court have come to the fore which may be taken note of at this stage. In the face of duly authenticated record (form 32) obtained from the office of Registrar of Companies, as indeed the information obtained under the Right to Information Act, 2005, from the said office, the second respondent through counsel fairly concedes that the petitioner had resigned from the position of the Director of the accused company on 16.10.2001. It is admitted that the cheque in question, issued on 25.01.2001 was not presented for encashment during the initial period of its validity. Presumably with the assistance of the accused company, it was revalidated on 25.07.2001 but presented for e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he account.- Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may extend to two year, or with fine which may extend to twice the amount of the che ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1881 deals with offences by companies. It runs thus :- 141. Offences by companies - (1) If the person committing an offence under Section 138 is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly: Provided that nothing contained in this sub-section shall render any person liable to punishment if he proves that the offence was committed without his knowledge, or that he had exercised all due diligence to prevent the commission of such offence: "Provided further that where a person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lity on the part of such directors, managers, secretary or other officers as are proved to have committed acts indicating having given "consent" or been guilty of connivance or neglect leading to the non-payment of the cheque amount constituting the offence under Section 138 of the Negotiable Instruments Act, 1881. 11. The petitioner was not a director in the company on the date the cheque was presented for encashment. No notice in terms of Section 138 of the Negotiable Instruments Act was issued to or served on him. Having resigned from the position of the director, there was no occasion for him to be privy to the service of notice of demand on the company. Since he was no longer responsible for the conduct of the business of the company, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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