TMI Blog2010 (10) TMI 1229X X X X Extracts X X X X X X X X Extracts X X X X ..... Crl.O.P. No. 433 of 2005 under Section 138 of the Negotiable Instruments Act (hereinafter referred to as the Act ) before the XIII Metropolitan Magistrate, Chennai, and the same has been taken on file as C.C. No. 6360 of 1997. The said complaint has been filed in respect of the dishonour of the following cheques, after satisfying the statutory requirements: 3. A complaint has been filed by the first Respondent/complainant against the petitioner and Respondents 2 and 3 in Crl.O.P. No. 434 of 2005 under Section 138 of the Act before the XIII Metropolitan Magistrate, Chennai, and the same has been taken on file as C.C. No. 6358 of 1997. The said complaint has been filed in respect of the dishonour of the following cheques, after satis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision, a learned Single Judge of this Court, in paragraph 7, has observed as follows: 7. ...The said presumption of guilty arises only when a notice is served under Section 138(b) of the Act calling upon such person to honour the notice by making payment. Only in the event of failure to make payment within 15 days from the receipt of the notice, the cause of action for prosecuting such director arises.... In the very same decision, in paragraph 7, it has been laid as follows: Therefore, I hold that when the offence is committed by a company and by virtue of Section 141 of the Act and 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Sarvaraya Textiles Limited v. Integrated Finance Ltd. reported in 2001 (1) CTC 725, wherein, it is held that the prosecution is maintainable, even though, notice has not been served on the Director, who is sought to be prosecuted, since notice served on the company amounts to service of notice to all the Directors arrayed as accused, along with the company. While considering the said question, a Division Bench of this Court, in paragraph 37, has laid down as under: 37. In the light of what is stated above, the answer to the question is, statutory notice to every person, including the director, who is sought to be prosecuted, is mandatory. (iv) (2002) 9 SCC 415 (Shakti Travel Tours v. State of Bihar). In the said decision, it is h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n as follows: 20(c) The answer to question (c) has to be in affirmative. The question notes that the Managing Director or Joint Managing Director would be admittedly in charge of the company and responsible to the company for conduct of its business. When that is so, holders of such positions in a company become liable under Section 141 of the Act. By virtue of the office they hold as Managing Director or Joint Managing Director, these persons are in charge of and responsible for the conduct of business of the company. Therefore, they get covered under Section 141. So far as signatory of a cheque which is dishonoured is concerned, he is clearly responsible for the incriminating act and will be covered under Sub-section (2) of Section 141 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pondent basing reliance on a decision reported in (2007) 3 SCC (Cri) 236 (referred to supra) submitted that even assuming that no notice was served on the petitioner, since the petitioner has not made the payment of the amounts covered by the dishonoured cheques within 15 days of the receipt of the summons from the Court, the petitioner cannot contend that there was no proper service of notice. The said contention of the learned Counsel for the first Respondent cannot be countenanced, since, in the said decision, the facts are different, namely, in that case, though notice was sent by the complainant, the contention of the accused was that he did not receive the notice sent by post. Only taking that into consideration, the Apex Court has he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f that case are totally different and the issue that arose for consideration before the Apex Court in that case is also totally different. 12. Now it has to be seen as to whether the contentions put forth by the learned Counsel for the petitioner on the basis of the decisions relied upon by him are sustainable. 13. At the outset it has to be pointed out that in the complaints, it has not been stated that the statutory notice was sent to the petitioner. Therefore, the question of his complying with the demand within 15 days from the date of receipt of the summons from the Court does not arise. The contention that notice to the company will amount to notice to the petitioner, who happens to be the Chairman cum Managing Director of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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