TaxTMI 
TaxTMI 
1994 (8) TMI 318
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....arrangement" dated May 31, 1993, that the complainant got issued a legal notice dated June 8, 1993, demanding payment of the amount, that the notices were sent both by registered post acknowledgment due as well as by certificate of posting to both the accused, that while the first accused received the notice the second-accused refused the same, that the first accused sent a reply in which he admitted the issuance of the cheque but made other false allegations and that as the accused had failed to pay the amount in spite of the notice they have committed offence under section 138 of the Act and also under section 420 of the Indian Penal Code. 3. The Magistrate, after recording the sworn statement of the complainant and after perusing the complaint and the sworn statement as well as documents, issued summons to both the accused persons. Learned counsel for the petitioner has urged the following grounds in support of the petition : (1) The Magistrate has taken cognizance of the offence after recording the sworn statement which is illegal and it vitiates the proceedings. (2) The notices as well as the cheque produced along with....
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....st the accused. Register C.C. and issue summons to accused by November 23, 1993." 4. This portion of the order would appear to indicate that the magistrate has taken cognizance after the statement of the complainant was recorded. But as the Magistrate had, on the very day the complaint was filed, directed that it should be registered and put up before him and when it was put up before him he has examined the complainant on two occasions, would indicate that he had by those acts already taken cognizance of the offence. In fact in State v. Papireddy this court has referred to an earlier decision in D. P. Sharma v. C. R. Gandha [1982] 2 KLC 358 That was also a case where the magistrate made a note on the complaint itself stating that the complaint was presented at 3 p.m. and directing that it be registered as P.C. and be called on February 6, 1980. That endorsement was interpreted by this court as showing that the magistrate had applied his mind to the contents of the complaint and that, therefore, he adjourned the case for recording the sworn statement of the complainant as required under section 200, Criminal Procedure Code. It was also held that those facts leave no doubt in the....
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....f the accused persons without the firm being impleaded as an accused is not maintainable. At this stage I may refer to an argument by learned counsel for the petitioner that the complaint does not indicate that the offence is committed by the firm that the accused are being prosecuted as persons who were in charge of and were responsible to the firm for the conduct of the business and that as such the complaint as framed is not at all maintainable. It is no doubt true that the firm as such is not arrayed as an accused. The two persons who are arrayed as accused are described as hereunder : (1) V. V. Samnath, Vikas Services, Partner, 1st Floor, III Cross, B.T.S. Road, Wilson Garden, Bangalore-27. (2) Surendra Shetty, Vikas Services, Partner, 1st Floor, III Cross, B.T.S. Road, Wilson Garden, Bangalore-27. 9. The description of the two accused persons shows that they are being prosecuted because they are the partners of Vikas Services. Though in the complaint....
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.... of the Act unless there was a prosecution against Modi Industries Limited, the company owning the industrial unit, can be termed as correct, the objection raised by the petitioners before the High Court ought to have been viewed not in isolation but in the conspectus of facts and events and not in vacuum. We have already pointed out that the technical flaw in the complaint is attributable to the failure of the industrial unit to furnish the requisite information called for by the board. Furthermore, the legal infirmity is of such a nature which could be easily cured. Another circumstance which brings out the narrow perspective of the learned single judge is his failure to appreciate the fact that the averment in paragraph 2 has to be construed in the light of the averments contained in paragraphs 17, 18 and 19 which are to the effect that the chairman, vice-chairman, managing director and members of the board of directors were also liable for the alleged offence committed by the company." 12. In the above case, the Supreme Court has only observed that the proposition may be correct in the abstract, but it has not laid down specifically that no prosecution against the persons in....
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....eld guilty and punished when it is a company that contravenes an order made under section 3 of the Essential Commodities Act. Naturally, before the persons-in-charge or an officer of the company is held guilty in that capacity it must be established that there has been a contravention of the order by the company." 13. In view of the above authoritative pronouncement of the Supreme Court, it cannot be contended that the persons who were in charge of and were responsible to the company for the conduct of the business cannot be prosecuted for the offence committed by the company without the company itself being prosecuted. As such, the contention of learned counsel for the petitioner that as the offence is committed by the firm, the petitioner cannot be prosecuted without the firm being arraigned as an accused, cannot be accepted. Another contention that was urged by learned counsel for the petitioner was that under section 138, notice giving 15 days' time for payment ought to have been issued and that as in this case the complainant had issued a notice demanding the amount within a week, the notice is invalid and consequently no offence under section 138 is made out. He rel....