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TMI Blog2024 (11) TMI 918X X X X Extracts X X X X X X X X Extracts X X X X ..... e accused company in the present case to make good the sum payable under the cheque. A company being a juristic entity is run by living persons who are in charge of its affairs and who guide the actions of that Company and that if such juristic entity is guilty, those who were so responsible for its affairs and who guided actions of such juristic entity must be held responsible and ought to be proceeded against. Curiously in the present case, while the accused persons are claiming that the service of demand notice on the accused company be considered as service on its Directors as well, the complainant is contending otherwise - this Court has no hesitation to hold that the service of demand notice to the accused company on 11.03.2022 is effective service on petitioner No.2 as well - there is no dispute that petitioner No.3 was also served on 11.03.2022 itself through email. Once it is held that service of demand notice on the company would be considered as a service on the other petitioners, the next issue as to what would be the starting period of limitation for filing complaint is simple calculation. Indisputably, the said complaint was not accompanied with any application for co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring letter ensuring that the said cheques would be honoured on presentment. Subsequently, the operations of the petitioner No.1 slowed down and consequently, it defaulted in paying the quarterly coupon amount of Rs. 9,37,50,000/- for the quarter ending 22.01.2022, to the complainant, which constituted a violation of the Agreement. Subsequently, the complainant, in accordance with Clause 5.12 of the Debenture Trust Deed, deposited 2 (two) cheques, bearing cheque no. 680413 for an amount of INR 1,50,00,00,000/- (Rupees One Thousand Five Hundred Million only), and cheque no. 680401 for an amount of INR 93,750,000 (Rupees Ninety-Three Million Seven Hundred and Fifty Thousand only), ( Cheques ), both drawn on Punjab National Bank, Kilpauk, Chennai. The said cheques were returned dishonoured vide return memo dated 28.02.2022 with remarks Funds insufficient . Demand Notice with regards to the same was issued on 11.03.2022. The dues remained outstanding led the complainant to institute the present proceedings against the petitioners. 4. Learned counsel for the petitioners first and foremost contended that the subject complaint is time barred and filed beyond the stipulated time period pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he date for calculating the limitation period for filing the complaint was correctly determined based on the successful service of the legal notice by registered post to all the accused. In this manner, the limitation to file the complaint was available till 30.04.2022. Further, the complaint filed in Gurugram was registered as Case No. NCAT/17165/2022. Upon becoming aware that the jurisdiction to file the complaint would lie in Delhi, the said complaint was withdrawn on 27.04.2022. It is submitted that thus, the period of limitation of the complaint was stretched by the aforesaid order and the time period spent by the complainant in prosecuting the Gurugram Complaint (i.e. from 20.04.2022 to 27.04.2022) would be liable to be excluded during the time of calculation of period of limitation. 6. I have heard the counsels for the parties and perused the material on record. 7. The only issue germane in present proceedings is that when did the limitation commence for filing the complaint and whether the time spent in pursuing the first complaint filed before the court in Gurugram could be excluded. 8. To appreciate the issues at hand, it is deemed apposite first to extract the relevant p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. petitioner No.2 herein, the service of demand notice on the other Director i.e. petitioner No.3 being not in dispute. The primary accused being the company on whose behalf the subject cheques were issued, concededly, was served with a demand notice through email on 11.03.2022 itself. There is no averment from either side that the said email bounced back. The other two accused are the Directors in the accused company. A plain reading of Section 141 NI Act reveals that there is no requirement of serving each Director separately. The notice envisaged under Section 138 NI Act is required to be given to the drawer of the cheque i.e. the accused company in the present case to make good the sum payable under the cheque. A company being a juristic entity is run by living persons who are in charge of its affairs and who guide the actions of that Company and that if such juristic entity is guilty, those who were so responsible for its affairs and who guided actions of such juristic entity must be held responsible and ought to be proceeded against. The opportunity to the drawer‟ company is considered good enough for those who are in charge of the affairs of such Company Kirshna Texpo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d for the accused company to make good the payment under the cheques in question came to end on 26.03.2022. The cause of action arose on 27.03.2022 and excluding that in terms of the decision of Supreme Court in Saketh India Ltd. V. India Securities reported as (1999) 3 SCC 1, the period of one month (30 days) came to an end on 27.04.2022. The subject complaint was filed on 28.04.222. The relevant observation in this regard in Saketh (supra) is extracted hereunder: 7. The aforesaid principle of excluding the day from which the period is to be reckoned is incorporated in Section 12(1) and (2) of the Limitation Act, 1963. Section 12(1) specifically provides that in computing the period of limitation for any suit, appeal or application, the day from which such period is to be reckoned, shall be excluded. Similar provision is made in sub- section (2) for appeal, revision or review. The same principle is also incorporated in Section 9 of General Clauses Act, 1897 which, inter-alia, provides that in any Central Act made after the commencement of the General Clauses Act, it shall be sufficient, for the purpose of excluding the first in a series of days or any other period of time, to use ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nch of this court in Simranpal Singh Suri v. State Anr reported as 2021 SCC OnLine Del 236 wherein it was held that:- 12. In terms of dictum of Full Bench of Hon'ble Supreme Court in Econ Antri Ltd. (Supra), the ratio of decision in M/S Saketh India Ltd. (Supra), has to be applied to the case in hand. 13. The crux of the present case is that legal demand notice dated 31.05.2019 was sent on 01.06.2019, which was duly served upon the petitioner on 03.06.2019. The 15 days notice period in this case commenced on 04.06.2019 and lapsed on 18.06.2019. It is not in dispute that in terms of Hon'ble Supreme Court's decision in M/S Saketh India Ltd. (Supra), one day has to be excluded for counting the one month limitation period and, therefore, excluding the day of 19.06.2019, the limitation period started from 20.06.2019 and the limitation period expired with the day in the succeeding month immediately preceding the day corresponding to the date upon which the period started. Consequently, the limitation period in this case, which commenced on 20.06.2019, expired in the succeeding month on a day preceding the date of commencement i.e. 19.07.2019. Admittedly, the complaint in this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riod of limitation and not maintainable. In coming to the said conclusion, this Court also draws support from the decision of a Coordinate Bench in D.Babu v. M/s Bhartia Industries Ltd. reported as 2009 SCC OnLine Del 496 wherein it is stated :- 20.....Besides this petitioner has not filed any application before the concerned court to seek condonation of delay and thus not having taken recourse to the provisions of section 141(b), no benefit can be derived by respondent therefrom. Xxx 21. However, there is nothing on record to show that any application was made for condonation of delay or any attempt was made to satisfy the Court that there was sufficient cause for not making the complaint within the stipulated time period. 22. In view of the aforesaid, I find that the criminal complaint titled as M/s Bhartia Industries Limited Vs. D. Babu filed by the respondent under Section 138 of the Negotiable Instruments Act in the Court of learned Metropolitan Magistrate, Patiala House, has been filed beyond the period of limitation. The same is accordingly quashed. 18. To the similar extent is another decision in the case of Simranpal Singh Suri (supra) wherein on unexplained delay of one d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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