9911796707
TMI Blog2003 (9) TMI 824X X X X Extracts X X X X X X X X Extracts X X X X ..... complainant has initiated the instant criminal proceeding by impleading the company itself and the directors of the company, yet, in the four corners of the petition of complaint, there is no clear averment for Invoking the provisions of Section 141 of the N.I. Act or in other words, it has not been quite clearly spelt out in the petition of complaint that the other persons impleaded in the petition of complaint were persons in charge of and/or responsible for the day to day affairs of the company in the matter of management and affairs of the company. 2. The present petitioners on receipt of the summons in the aforesaid case have approached this Court seeking to quash the aforesaid proceeding on the aforesaid premises. 3. This prayer, however, has been seriously opposed on behalf of the de facto complainant/opposite party alleging that whether or not earlier any notice was issued in connection with this case, being not an admitted fact, it should be left open to be decided in course of trial after taking evidence in connection with this case and since the question whether or not such notice was issued will certainly be a question of fact and that could only be decided durin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the position, pressing his claim on the basis of the second notice and filing of the complaint on 7th September, 2001 will be certainly hit by the law of limitation. 8. In opposing the aforesaid contention, it has been contended on behalf of the Opposite Party/de facto complainant that the complainant has not admitted the issuance ,of the first notice, rather by way of filing the affidavit-in-reply, it has been stated by the opposite party that he had never issued any notice as has been referred in Paragraphs 7 and 8 of the supplementary affidavit and in Paragraphs 8 and 9 of the affidavit-in-reply, it has been contended that the aforesaid fact had neither been stated in the main revisional application, nor during the course of hearing of revisional application before this Court and it is only at the time of filing of said supplementary affidavit such documents are forthcoming for which no reliance whatsoever should be placed on those documents. 9. I have given my anxious consideration with regard to submission made by the parties in this regard. 10. True it is that at the stage of disposing of the quashing matter, the Court is not normally entitled to embark upon any so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f his such right under Clause (b) of Section 138, go on presenting the cheque so as to enable him to exercise such right at any point of time during the validity of the cheque. But, once he gives a notice under Clause (b) of Section 138 he forfeits such right, for, in case of failure of the drawer to pay the money within the stipulated time he would be liable for the offence and the cause of action for filing the complaint will arise. Needless to say, the period of one month for filing the complaint will be reckoned from the day immediately following the day on which the period of fifteen days from the date of the receipt of the notice by the drawer, expires . 14. Applying the ratio of the aforesaid decision, in the background of the aforesaid admitted fact that the complainant issued first notice on 22nd June, 2001 which was received by the drawer in course of the same month, the filing of the complaint on the basis of such notice on 7th September, 2001, as has been done in this particular case would be certainly beyond the period of limitation as the period of one month for filing the complaint will be reckoned from the day on which period of 15 days from the date of the recei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nly some part of the business. 19. So, referring to the aforesaid decisions, it has been contended on behalf of the petitioners that since there is no clear averment in the petition of complaint against these petitioners, precisely against the petitioner No. 2 that he was in charge of and was responsible to the company for the conduct of the business of the company, the present case cannot be proceeded with against him in the light of those decisions and the law enunciated therein. 20. In opposing the aforesaid contention, it has been contended on behalf of the Opposite Party that from the recital of Paragraph 2 as also Paragraph 5 of the complaint petition, wherein petitioner No, 2 has been shown as director of the company, it will be crystal clear that petitioner No. 2 herein was certainly a person in charge or responsible to the company for the management of the day to day affairs of the company and in this connection they have placed their reliance on the decision reported in 1998 Cal Cri LR 287 in the case Mohan Kumar Mukherjee v. Ledo Tea Company Limited, decision reported in MANU/TN/0291/1999 (Mad) in the case of Natesha Singh v. Klen and Marshalls of Manufactures and ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
