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TMI Blog2021 (11) TMI 276X X X X Extracts X X X X X X X X Extracts X X X X ..... also a tea factory. A-4 had issued a postdated cheque dated 13.05.2015; on 26.05.2015 by cheque bearing No. 054152 drawn on State Bank of Travancore, Coonoor, for Rs. 7,39,471/- in favour of the respondent/defacto complainant from the account of A-4. 4. In the present petition seeking to quash S.T.C. No. 1084 of 2015 which had been taken cognizance consequent to the said complaint, the petitioners have stated that it is the case of the respondent that it was only A-4 and A-5 who are running the A-1 Company and also that the cheque which had been issued and which had subsequently been dishonoured had been issued by A-4 from and out of the account of A-4. 5. Prior to filing of the complaint, the defacto complainant caused an Advocate notice to be issued to (1) Imperial Tea Company private limited, (2) Mr. John Gerald and (3) Mr. Bonita Maria Dinesh. The notice was not issued to the present petitioners herein. It had therefore been contended in the petition that S.T.C. No. 1084 of 2015 should be quashed in so far as the petitioners are concerned. 6. Heard arguments advanced by Mr. B. Kumarasamy, learned counsel for the petitioners and Mr. L. Mouli, learned counsel for the responde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nour 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 be extended to two years], or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless-- (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) 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, [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Explanation.- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Engineering Company Ltd.,], the Hon'ble Supreme Court had held as follows:- "9. To fasten vicarious liability under Section 141 of the Act on a person, the law is well settled by this Court in a catena of cases that the complainant should specifically show as to how and in what manner the accused was responsible. Simply because a person is a Director of a defaulter Company, does not make him liable under the Act. Time and again, it has been asserted by this Court that only the person who was at the helm of affairs of the Company and in charge of and responsible for the conduct of the business at the time of commission of an offence will be liable for criminal action. (See Pooja Ravinder Devidasani v. State of Maharashtra [Pooja Ravinder Devidasani v. State of Maharashtra, (2014) 16 SCC 1: (2015) 3 SCC (Civ) 384: (2015) 3 SCC (Cri.) 378: AIR 2015 SC 675].) 10. In other words, the law laid down by this Court is that for making a Director of a Company liable for the offences committed by the Company under Section 141 of the Act, there must be specific averments against the Director showing as to how and in what manner the Director was responsible for the conduct of the busi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is that the cheque ought to have been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier. The second condition is that the payee or the holder in due course of the cheque, as the case may be, ought to make a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid. The third condition is that the drawer of such a cheque should have failed to make payment of the said amount of money to the payee or as the case may be, to the holder in due course of the cheque within fifteen days of the receipt of the said notice. It is only upon the satisfaction of all the three conditions mentioned above and enumerated under the proviso to Section 138 as clauses (a), (b) and (c) thereof that an offence under Section 138 can be said to have been committed by the person issuing the cheque." (emphasis supplied)" 20. This Judgment had been subsequently followed in (2014) 2 SCC 424 [ Kamlesh Kumar Vs. State of Bihar and Another], wherein th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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