TMI Blog2022 (1) TMI 497X X X X Extracts X X X X X X X X Extracts X X X X ..... of the company must naturally be aware of the demand notice issued to the company. Hence, no separate notice is required to be given to such persons - Moreover, it has been held by the Hon'ble Supreme Court that if the contention of the accused is that the offence was committed without their knowledge or that they had exercised due diligence to prevent such commission, the same would be considered only at the time of trial and not at the stage of notice under Section 138. Admittedly, in this case, the liability of the petitioner company has not been discharged and also it is not denied that Mr.Hitesh V. Shah is the Director of the company. The Manager, who is in charge of the petitioner company, has entered appearance before the Court below only on receipt of the summon issued to the Director Mr. Hitesh V. Shah and hence, no separate notice is required to be issued to him under Section 138 of the Act. Since the matter is of the year 2003, the Magistrate is hereby directed to complete the trial within a period of six months from the date of receipt of a copy of this order - Petition dismissed. - CRL. O. P. No. 7312 of 2014 - - - Dated:- 12-11-2021 - THE HON'BLE M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s been calling the petitioner or when the respondent's Marketing Executive visited his office, either he has been promising payments, which he did not honour or he was giving only evasive replies. 4. It was further averred in the complaint that the petitioner / accused had given a cheque bearing No.122762 dated 02.11.2003 drawn on Global Trust Bank, Kilpauk Branch, Chennai-10, for a sum of ₹ 2,14,550/-, which was dishonoured, but the petitioner instructed the respondent to redeposit the same. The respondent represented the cheque on 24.03.2004 at Canara Bank, Pallavaram and the same was returned on 25.03.2004 and received by the respondent on 26.03.2004 with an endorsement Refer to Drawer . The respondent issued a legal notice on 05.04.2004 which was acknowledged by the petitioner. Thereafter, the respondent has filed a complaint against the petitioner under Section 138 of the Negotiable Instruments Act, before the II Metropolitan Magistrate Court at Egmore. Subsequently, the cheque bearing No.122799 dated 26.04.2004 drawn on Global Trust Bank, Kilpauk Branch, Chennai-10, for a sum of ₹ 1,93,778/-, was presented on 26.04.2004 at Canara Bank, Pallavaram and the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inable under the law. 7. The respondent / complainant has filed a counter affidavit denying all the averments made in the petition, wherein, it is stated that the petitioner company were evading service of notice on them till the Court was able to serve the summons to Mr.Hitesh V.Shah, Director of the Company in 2013 and then vakalat was filed by Mr.Sanjay, Manager of the Company. Further, it is stated that the person who signed the cheque his name is not clear and hence the respondent is not in the position to mention the name of the person who has signed the cheque and thereby sent the demand notice to the address of the company. Section 141 of the Negotiable Instrument Act contemplates that 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 . Hence, the person who is in charge of the company and day to day affairs of the business of the company will be deemed to be gu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue dated 02.11.2003 and the same was returned on 25.03.2004 with the endorsement Refer to Drawer. Hence, the respondent has issued a legal notice on 05.04.2004. In spite of the said legal notice, the petitioner has not come forward to settle the dues. Hence, the respondent has filed a complaint against the petitioner in C.C.No.21436 of 2005 on the file of the Metropolitan Magistrate, Fast Track Court - I, Egmore, Chennai-8. Aggrieved by the said complaint, the petitioner has filed this Writ Petition before this Court. 11. The main contention of the learned counsel for the petitioner is that the Manager, who is in charge of the petitioner company, was not issued individual statutory notice under Section 138 and hence, he is not responsible for the alleged dishonour of cheques. In support of the said contention, the learned counsel for the petitioner has placed reliance on the Judgment of this Court in Dilip S. Dhanukar Vs. India Equipment Leasing Ltd., wherein, this Hon ble Court has held as follows : 14. A contention has been raised by the petitioner that he is only the Chairman of the first accused company and not the Managing Director, whereas, in the complaints, it has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heir case that the offence was committed without their knowledge or that they had exercised due diligence to prevent such commission, it would be a matter of defence to be considered at the appropriate stage in the trial and certainly not at the stage of notice under Section 138. 17. If the requirement that such individual notices to the directors must additionally be given is read into the concerned provisions, it will not only be against the plain meaning and construction of the provision but will make the remedy under Section 138 wholly cumbersome. In a given case the ordinary lapse or negligence on part of the Company could easily be rectified and amends could be made upon receipt of a notice under Section 138 by the Company. It would be unnecessary at that point to issue notices to all the directors, whose names the payee may not even be aware of at that stage. Under Second proviso to Section 138, the notice of demand has to be made within 30 days of the dishonour of cheque and the third proviso gives 15 days time to the drawer to make the payment of the amount and escape the penal consequences. Under clause (a) of Section 142, the complaint must be filed within one month ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ho was in charge of that company for conduct of its business shall be deemed to be guilty. Further, the Hon'ble Supreme Court has held that the persons who are in charge of the affairs of the company must naturally be aware of the demand notice issued to the company. Hence, no separate notice is required to be given to such persons. Moreover, it has been held by the Hon'ble Supreme Court that if the contention of the accused is that the offence was committed without their knowledge or that they had exercised due diligence to prevent such commission, the same would be considered only at the time of trial and not at the stage of notice under Section 138. 16. Admittedly, in this case, the liability of the petitioner company has not been discharged and also it is not denied that Mr.Hitesh V. Shah is the Director of the company. The Manager, who is in charge of the petitioner company, has entered appearance before the Court below only on receipt of the summon issued to the Director Mr. Hitesh V. Shah and hence, no separate notice is required to be issued to him under Section 138 of the Act. Hence, this Court is of the view that the complaint in C.C.No.21436 of 2005 on the fil ..... X X X X Extracts X X X X X X X X Extracts X X X X
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