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TMI Blog2024 (5) TMI 1442X X X X Extracts X X X X X X X X Extracts X X X X ..... mpany and being a signatory of the cheques was deemed to be aware of the receipt of the notice by the company. Thus, the ratio of the Apex Court laid down in Krisha Texport and Capital Markets [ 2015 (6) TMI 344 - SUPREME COURT ] and considering the peculiar facts and circumstances of present case, the prosecution against the applicant without serving the statutory notice is maintainable and trial court has rightly recorded the findings that, the notice to the applicant is not necessary and prosecution can be proceeded without it. The second contention raised is that, the impleadment of the accused u/s 319 of the CrPC for the offence punishable u/s 138 could not have entertained after the expiry of statutory period. When the application u/s 319 of CrPC was allowed, the trial court has not taken a cognizance of the offence. The contention with regard to limitation would be applicable only in case the court has taken cognizance of the offence. If the application of impleadment of the applicant would have filed after taking cognizance of the offence, then, the issue of limitation would come into picture. In the facts of present case, at the time of passing the order u/s 319, the trial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 22.12.2021, before the trial court, the authorized person of the bank namely Mr. P.D. Parth, was examined and he had produced the particulars of the accounts of Umiya Ceramics including the particulars of the authorized signatory of the accounts. It has come on record of the trial court that, the cheques were issued by Umiya Ceramics and one Bhoraniya Damjibhai Tapubhai i.e. applicant herein is the authorized signatory of the cheques. Based on this evidence, the complainant vide Ex.13, prayed before the trial court that, the applicant Bhoraniya Damjibhai Tapubhai being a signatory of the cheques, has committed offence and therefore, he may be impleaded as accused in the said enquiry. The learned trial court vide its order dated 21.05.2022, allowed the said application and joined the applicant herein as accused no.4. 4. Being aggrieved with the said order, the applicant has preferred this application, inter alia, stating that the impugned order has been passed by ignoring the mandatory provision of N.I. Act as no notice as contemplated under Section 138(b) of N.I. Act was served upon the applicant and therefore, impleadment of applicant as accused, without serving statutory notice i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taking cognizance for the offence under Section 138 of the N.I. Act, the court having all the powers to join the accused who has committed the offence and in the facts of present case, the applicant is the authorized signatory of the cheques and at relevant time, the complainant was not certain about who is the authorized signatory and during the criminal enquiry, the bank officer was examined for production of particulars of the bank account and on production of evidence in relation to the signatory authority, the application Ex.13 under Section 319 of Cr.P.C. was submitted to the court. Thus, undisputedly the cheques in question were signed by the present applicant and trial court was prima-facie satisfied that, the company and the present applicant has committed an offence for which he could be tried together with the co-accused. In such circumstances, Mr. Darji, learned counsel has submitted that, the trial court has rightly relied on the ratio laid down by the Apex Court in the case of Satish Chand Singhal (supra) that notice to the company amounts to notice to the signatory of the cheque and no separate notice is require to be served on the signatory of the cheque and theref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, arraigning of a company as an accused is imperative. In the said judgment, it has nowhere observed and held that, in order to maintain the prosecution against the directors, the individual notices under Section 138 would be mandatory and necessary. Thus, the contention as raised that, without serving notice upon the director, the prosecution is bad in law, has not been dealt by the three Judge Bench of the Apex Court (Aneeta Hada). On the contrary, the Apex Court in Krishna Texport Capital Markets Limited vs. Ila A. Agrawal Ors. (2015 (8) SCC 28), has observed and held that, when the offence is committed by the company and to fastening the liability on the directors with vicarious liability, the issuance of individual notice under Section 138 to the directors not required as the summary remedy created for benefit of drawee of dishonour of cheque will thus be rendered completely cumbersome and capable of getting frustrated. The extract of para-15 and 16 are reproduced as under: 15. If the requirement that such individual notices to the directors must additionally be given is read into the concerned provisions, it will not only be against the plain meaning and construction of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we must record that the decision of the Division Bench of the Madras High Court in B. Raman Ors. Vs. M/s. Shasun Chemicals and Drugs Ltd. (supra) was incorrect and it stands overruled. The appeal is allowed in these terms. 10. It is not in dispute that the applicant was in charge of and responsible to the conduct of business and the cheques were issued by the company allegedly signed by the applicant herein. Therefore, mere non mentioning of the name of the applicant in the complaint cannot be absolved him of the responsibility of the company as he has issued the cheques in question. Thus, therefore, the technical issue of non-serving of notice as contemplated under Section 138 (b) has no any merits as the principal accused-company and other two directors were served with statutory notice and in view of the status of the applicant in the company and being a signatory of the cheques was deemed to be aware of the receipt of the notice by the company. Thus, the ratio of the Apex Court laid down in Krisha Texport and Capital Markets (supra) and considering the peculiar facts and circumstances of present case, the prosecution against the applicant without serving the statutory notice i ..... 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