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TMI Blog1992 (10) TMI 275X X X X Extracts X X X X X X X X Extracts X X X X ..... r ₹ 1,00,000/-. The first respondent in Crl.P. No. 403 of 1992 presented the said, cheque in Vijaya Bank at Ongole on 13-6-1991 and it was returned with an endorsement that there are insufficient funds in the account of the petitioner. Subsequently, on 17-6-1991, the first respondent in Crl.P. No. 403 of 1992 issued a notice to the petitioner bringing to his notice about the dishonour of the cheque and requesting him to arrange for the payment with interest within 15 days from the date of receipt of the notice. The said notice was received by the petitioner on 26-6-1991, to which he gave a reply dated 1-7-1991 which was received by the first respondent in Crl.P. No. 403 of 1992 on 5-7-1991. Not satisfied with the reply of the petitioner, the first respondent in Crl.P. No. 403 of 1992 filed a criminal complaint on 30-7-1991 before the learned II Additional Munsif Magistrate, Ongole under Section 200 Cr.P.C. r/w Section 138 of the Act. The learned Magistrate having found that all the requirements necessary for taking cognizance of the case have been fulfilled, took the case on file and registered the same as C.C. No. 104 of 1991. 4. Likewise, the petitioner also borrowed a s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imposes punishment for dishonour of a cheque for insufficiency of funds etc. Proviso (a) to Section 138 of the Act reads as follows: 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. 9. The meaning of the word drawn as such is not defined in the Act. The Madras High Court had an occasion to consider the meaning of the word drawn in G. Thirugnanasambandam v. R. Shanmugasundaram, 1992 (1) Bank C.L.R. 409 which case has been strongly relied upon by the learned counsel for the petitioner. 10. In the case before the Madras High Court in G. Thirugnanasambandam's case, 1992 (1) Bank C.L.R. 409 on 13-1-1989 the petitioner therein issued a cheque post dated to 18-4-1989 for a sum of ₹ 3,50,000/- drawn on the Bank of Madhura Limited, Annamalai Nagar Branch, Chidambaram. It is alleged that the petitioner requested the respondent therein not to present the cheque before 18-4-1989. Subsequently, the respondent presented the cheque in Indian Bank, Egmore, Madras on 9-9-1989 which was r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said period of six months has to be computed from the date which the cheque bears. Similarly, for post-dated cheques, the same analogy has to be drawn and if the party intended that the cheque has to be presented on a particular date and not on the date of its execution, the date which bears on the cheque alone has to be taken into consideration for the purpose of its validity. Therefore, it follows that the validity of the cheque in the case of an ante-dated cheque runs from the date which bears on the cheque and in the case of a postdated cheque also, the validity of the cheque runs from the date contained on the instrument for a period of six months. If we give the above meaning, we can say that we are construing Section 138 of the Act in the proper perspective. Section 138 of the Act contemplates the period of six months or the period of its validity, whichever is earlier. The first part of the Section covers the cases where the cheques are ante-dated. Therefore, the reasonable construction that has to be placed to compute the period of an instrument is from the date contained on the instrument but not from the date on which it has been signed or prepared by the party concerned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idual who has issued the cheque cannot be prosecuted. Further, Section 141 of the Act which deals with the case of offences by companies reads as follows: If a person committing an offence under Section 138 is a Company, 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, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. 14. The said Section contains a proviso to the effect that nothing contained in this sub-section shall render any person liable to punishment if he proves that the offence was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence. 15. There is no whisper in the said Section that unless and until the company, for and on behalf of which a person issued the cheque is made a party, the person should not be prosecuted. In the instant case, as mentioned already, the petitioner who is one of the Directors of the company has issued the cheques with full knowledge which were bounced and therefore, he has to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n-in-charge or an officer of the company may not be separately prosecuted if the company itself is not prosecuted. The Supreme Court in Sheoratan Agarwal's case, 1984 SCC (Crl.) 620 held that each or anyone of the persons mentioned in Section 10 of the Essential Commodities Act may be separately prosecuted or along with the company. 18. It is further laid down by the Calcutta High Court in Satish Kr. Jhunjhunwalla v. Registrar of Companies, 1986 (2) Crimes 586 following the decisions of the Supreme Court that the proceedings cannot be quashed merely because the company has not been joined as an accused in the case. 19. Therefore, taking into consideration the decisions of the Supreme Court, referred to above, the decision of the Calcutta High Court in Satish Kr. Jhunjhunwalla's case, 1986 (2) Crimes 586 and also the fact that there is no provision in the Act which says that the Company also has to be prosecuted along with the person who has issued the cheque for and on behalf of the company (Section 141 as extracted above), I am of the opinion that the complaints filed against the petitioner are maintainable and they do not suffer from any infirmities whatsoever. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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