9911796707
TMI Blog1998 (8) TMI 631X X X X Extracts X X X X X X X X Extracts X X X X ..... ble Instruments Act, 1881 (hereinafter 'the Act') is a company, the notice envisaged under section 138 of the Act is required to be given to 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. 3. The short facts giving rise to these applications are that the respondent No. 2 is a creditor of the partnership firm named and styled as Paint Chem, having its business at Mumbai. One Shri Bharatbhai Mehta, who held out himself to be the partner in the said Paint Chem (hereinafter the 'accused firm'), had entered into certain business transactions with the respondent No. 2-firm. In due discharge of its l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gn the present petitioners as accused persons in the above-referred criminal cases. By an order dated 30th July, 1996, the said application was allowed. Feeling aggrieved, the petitioners have preferred the above applications under section 397 of the Code of Criminal Procedure, 1973. 4. Mr. Jani has contended that neither of the petitioners was given notice as envisaged under section 138 of the Act and in absence of any notice given to the petitioners, the complaint against them was not maintainable and the order arraigning them as accused persons is, therefore, illegal and requires to be set aside. He has submitted that the underlying object in enacting clause (b) of the proviso to section 138 of the Act is to give an opportunity to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by him with the banker for payment of any amount of money to another person from out of that account is returned by the bank unpaid, for the reasons stated in section 138 of the Act, that person is deemed to have committed an offence punishable with imprisonment for a term which may extend to one year or with fine or both. Clause (b) of proviso to section 138 provides that nothing in that section shall apply unless the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing to the drawer of the cheque. Section 141 of the Act provides, inter alia, that if the person committing an offence under section 138 is a company, every person who, at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d is not permitted to plead ignorance in respect of such matters. The Legislature, therefore, in its wisdom has made it obligatory upon the complainant to make demand for payment of the cheque amount by giving notice in writing to the drawer of the cheque alone and no person other than the drawer of the cheque is required to be given notice under section 138 of the Act. 7. In the matter of Surya Theatres (supra), the very question had come up for consideration before the Andhra Pradesh High Court, and considering the provisions contained in sections 138 and 141 of the Act, following the judgments of the Delhi High Court and the Punjab and Haryana High Court, the court held that : Section 141 of the Act does not prescribe that notice ..... X X X X Extracts X X X X X X X X Extracts X X X X
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