TMI Blog1997 (6) TMI 361X X X X Extracts X X X X X X X X Extracts X X X X ..... 1994, he received information from the Bank that cheques were dishonoured. The complainant then sent notice of demand of the amount of the cheques by registered post acknowledgment due (R.P.A.D.). However, on 27-12-1994, the accused refused to accept the notices. The accused also did not settle the amount under the cheques within the prescribed period. Hence, the complaint is filed on 10-2-1995. The complainant has contended that the transaction took place within the territorial jurisdiction of the Court at Chopada and, therefore, the matter was maintainable before that Court. He alleged that the accused committed the offence punishable under section 138 r/w 142 of Negotiable Instruments Act and under section 420 of the Indian Penal Code. The learned Magistrate by his order dated 10-2-1995 issued process against the accused for offence punishable under section 138 of Negotiable Instruments Act. 4. The present petitioner thereafter filed application for recalling the order of issuance of process before the J.M.F.C., Chopada, but that application was rejected on 19-10-1996. Hence, the present application. 5. The S.C.C. No. 156/95 was filed with respect to two cheques of ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have been received by the complainant on 29-11-1994. The notice of demand dated 12-12-1994 was sent by R.P.A.D. on 14-12-1994. It is alleged that on 20-12-1994, intimation was given to the petitioner by the postal authority but he did not claim the register. The documents produced on record do show that intimation was given on 20-12-1994. It means that the payment of the amount of the cheques ought to have been made by 4-1-1995 and the complainant on account of non-payment of amount of cheque ought to have been filed within one month from 4-1-1995, that means on or before 4-2-1995. But the complaint is filed on 10-2-1995. So the complaint - S.C.C. No. 156/95 is barred by limitation. The point of limitation is also raised in Criminal Application No. 26/97, but it is not so specifically pleaded. 9. The petitioner, therefore, in both the applications has prayed that order of issuance of process passed in both the criminal cases by J.M.F.C., Chopada, be quashed. 10. Heard Shri R.G. Karmarkar, learned Counsel for the petitioner and Shri R.R. Mantri, learned Counsel for the respondent. 11. The learned Counsel for the petitioner has argued that the entire transaction had taken p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tated in the complaint, it cannot be said that complaint is barred by limitation prima facie and, therefore, the order of issue of process cannot be quashed on that ground. 14. The learned Counsel for the petitioner has further argued that the cheques which are produced on record by the complainant are issued for Shakti Spinners Ltd. and are signed by the Managing Director of Shakti Spinners Ltd. So the drawer of the cheque is Shakti Spinners Ltd. - a company. However, the notices for demand of cheque amount sent by the complainant are addressed to Shri A. Chinnaswami - an individual. A. Chinnaswami might have signed the cheques, but the cheques were not signed by him in his individual capacity. The cheques were signed by him as Managing Director of Shakti Spinners Ltd. The drawer of the cheque being Shakti Spinners Ltd., the notices ought to have been issued to Shakti Spinners Ltd. There is no proper compliance of the provisions of sub-clause (b) of proviso to section 138. 15. The learned Counsel for the petitioner has argued that the offence under section 138 of Negotiable Instruments Act is committed not at the time of dishonour of the cheque, but it is committed when the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... If (that is not the position, then it ought to have been explained by the complainant as to how and where he had sold cotton to the accused in his individual capacity. He accepted the cheques drawn by and for Shakti Spinners Ltd. Ongoing through all the contents of the complaint and the documents filed on record, it is very clear that the drawer of the cheque is Shakti Spinners Ltd. and not the individual accused A. Chinnaswami. 19. While the notice is sent by the complainant to A. Chinnaswami. No doubt the address on the notice is not the residential address of A. Chinnaswami, but his office address. But that does not mean that the notice is sent to the drawer Shakti Spinners Ltd. The notice ought to have been addressed to the Shakti Spinners Ltd. and then it could have been made clear that it be given to the Managing Director A. Chinnaswami. But notice to A. Chinnaswami cannot be considered as notice to Shakti Spinners Ltd. 20. When any criminal liability is to be fastened on any person, then the provisions of the law must be interpreted strictly. Section 138 of the Negotiable Instruments Act provides that notice be given to the drawer of the cheque. When the drawer of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Negotiable Instruments Act reads as under :- 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. (2) Notwithstanding anything contained in sub-section (1), where any offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt or connivance or because of neglect attributable to whom the offence has been committed, whom for short we shall describe as an officer of the Company. Any one or more or all of them may be prosecuted and punished. The company alone may be prosecuted. The person-in-charge only may be prosecuted. The conniving officer may individually be prosecuted. One, some or all may be prosecuted. There is no statutory compulsion that the person-in-charge or an officer of the Company may not be prosecuted unless he be ranged alongside the Company itself. Section 10 indicates the person who may be prosecuted where the contravention is made by the Company. It does not lay down any condition that the person-in-charge or an officer of the Company may not be separately prosecuted if the Company itself is not prosecuted. Each or any of them may be separately prosecuted or along with the Company. Section 10 lists the person who may be separately prosecuted or along with the Company that contravenes an order made under section 3 of the Essential Commodities Act. Naturally, before the person-in-charge or an officer of the Company is held guilty in that capacity, it must be established that there ..... X X X X Extracts X X X X X X X X Extracts X X X X
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