2015 (7) TMI 1379

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..... In such situation the company is deemed to be the principal offender and the remaining persons are made offenders by virtue of legal fiction created by the legislature as per the Section, hence the actual offence should have been committed by the company. If that was so, then the notice as mandatorily required under Section 138 ought to have been served upon the company, but in the instant case undisputedly the notice has been served only upon its incharge and authorized signatory Sh. Vijay Kumar. The learned trial Magistrate has failed to take into consideration this distinction, which vitiate the entire proceedings as the Company can only be tried, in case there is a notice served upon it, that too after satisfying the provisions of Se .....

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..... ntending to do so. To make the provisions contained in Chapter XVII of the Act to more effective, some more sections were inserted in the Chapter and some amendments in the existing provision were also made. 5. Section 138 of the Act reads thus:- 138. Dishonour of cheque for insufficiency, etc., of funds in the account.-- 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, either 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 .....

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..... ven fifteen days time from the date of receipt of notice to make the payment and only after he fails to make payment, a complaint may be filed against him. 7. The words in clause (b) to proviso of Section 138 of the Act show that the payee has the statutory obligation to make a demand' by giving notice. The thrust in the clause is on the need to make a demand . It is only the mode for making such demand which the legislature has prescribed. Once it is dispatched, his part is over and the next depends what the sendee does. 8. Thus it is absolutely clear that making of a demand by giving a notice is sina-qua-non and it is only thereafter that the complainant can be maintained, that too after it is proved that the notice of such .....

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