2000 (10) TMI 974

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..... As on April, 1996, the outstanding due from Accused No. 3 was Rs. 22,12,000/-. As the Chairman-cum-Man-aging Director of Accused No. 5, i.e. M/s. Karthick Multi Packs Pvt. Ltd., Accused No. 1 issued a cheque for the said amount on 14-6-1997 drawn on Bank of Madura Ltd., T. Nagar, Madras. The Complainant/respondent herein presented the cheque through the Indian Bank, Melur, Tuticorin, On 2-7-1997, the cheque was returned with an endorsement as "Funds Insufficient". The complainant/respondent herein sent a legal notice to all the accused on 14-7-1997. But for the second accused, the others received the notice on 19-7-1997. The respondent preferred a complaint under Section 200, Cr. P.C. against Accused Nos. 1 to 5 alleging that all the accused have committed an offence under Section 138 of the Negotiable Instruments Act. The learned Judicial Magistrate No, I, Tuticorin took cognizance of the matter and issued summons for appearance of the accused. 3. At this stage, Accused No. 2 has come forward with this Criminal Original Petition to quash the proceedings on the following grounds :-- (i) The statutory notice was not served on him; (ii) The proceeding was instituted agains....

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....ice. This view has been expressed in the light of the observation of the Supreme Court made in M/s. Electronic Trade and Technology Development Corpn. Ltd., Secunderabad v. M/s. Indian Technologists and Engineers (Electronics) P. Ltd. 1996 J.C.C. 155 : (1996 Cri LJ 1692). 7. It would thus appear that once when notice is stated to have been served on accused Nos. 3 and 5 companies, notices to the individual Directors are not necessary to fasten them with liability. In the instant case, it is averred in the complaint that the statutory notice was issued and all the other accused received the notice, whereas the petitioner herein evaded the notice. 8. In Bhaskaran, K. v. Sankaran Vaidhyan Balan, 1999 (3) CTC 358: (1999 Cri LJ 4606) the Apex Court has held that a person notifies or gives notice to another by taking such steps as may be reasonably required to inform the other in the ordinary course, whether or not such other actually comes to know of it and that a person "receives" a notice when it is duly delivered to him or at the place of his business. There Lordships of the Apex Court has pointed out that if a strict interpretation is given that the drawer should have actually....

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....he companies, the learned counsel for the petitioner produced form No. 32 and other documents kept at the office of the Registrar of the Companies to show that he had seized to be so and cited a decision reported in Nucor Wires Limited v. HMT (International) Limited (1998) 2 Kant LJ 337, where the Karnataka High Court has held that it must be shown that Directors are in-charge of and responsible for conduct of business of Company at relevant time, that allegations against them must be specific that commission of offence was with their knowledge and connivance and that Penal provisions are to be construed strictly and there is no provision for fixing vicarious liability. 15. Per contra, in Rajesh Bajaj v. State, NCT of Delhi, 1999 (1) Andh LT (Crl) 301 (SC): AIR 1999 SC 1216: (1999 Cri LJ 1833), the Apex Court has held that in a petition under Section 482 of Cr. P.C. it is not permissible to adopt a strictly hyper-technical approach and "seive the complaint through a cullendar of finest gauzes for testing the ingredients" of the offence alleged against the accused, and that as to whether the person in question was really in-charge of the affairs of the company and was responsible....

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....que, was also a Director of both the companies. 19. Section 138 of the Negotiable Instruments Act and the explanation thereto recites as under:- 138. Dishonour of cheque for insufficiency, etc., of funds in the accounts 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, eiher 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 provisions of this Act, be punished with imprisonment for a term which may extend to one year, or with fine which may extend to twice the amount of the cheque, or with both : PROVIDED.... EXPLANATION : For the purpose of this section, debt or other liability "means a legally enforceable debt or other liability.The requirement for offence to be made out under this section is that the che....