The petitioners are accused 5 and 8 respectively in C.C.No.1826 of 1998 on the file of the learned XVIII Metropolitan Magistrate, Saidapet, Chennai. The respondent is the complainant. The respondent in the complaint filed under Secs.190(1)(a) and 200, Crl.P.C for an offence under Secs. 138, 141(1) and 142 of the Negotiable Instruments Act, 1881 and under Sec.420,I.P.C has stated that the respondent is a limited company incorporated under the provisions of the Companies Act, 1956 having its registered office at No.21/1, Crescent Park Street, Chennai-17. The respondent has sanctioned a short term loan for a sum of Rs. 9 lakhs to the 1st accused, namely, Nubal (India) Limited Chennai. The said amount was disbursed to the 1st accused on 3.1.1996 and was repayable with interest at the rate of 36% p.a Despite availing the said facilities the 1st accused has not been regular in respect of the repayment of the said sum and as on 31.1.1997 a sum of Rs. 5,15,000 was due and payable by the 1st- accused respondent/complainant. Towards part payment of the above said amount, the 1st accused issued three cheques to the respondent/complainant dated 18.2.1997 each for a sum of Rs. 1 lakh, Rs. 2 lakhs and Rs. 2 lakhs respectively. The respondent presented those cheques for payment through its bankers namely ICICI Banking Corporation Limited, Chennai on 18.6.1997 But the same were returned on 20.6.97 with an endrosement “FUNDS EXPECTED, PRESENT AGAIN”. With bona fide intention the respondent/complainant represented the cheque on 24.6.1997 However, those cheques were again returned with an endorsement “PAYMENT STOPPED BY DRAWER”. The cheques return memo dated 25.6.1997 was received by the respondent/complainant on 26.6.1997 Therefore, the respondent/complainant caused a lawyer's notice dated 30.6.1997 to all the accused calling upon them to pay a sum of Rs. 5 lakhs due under those cheques within 15 days from the date of receipt of the said notice. The notices sent through registered post with acknowledgment due was received by the 1st and 2nd accused on 2.7.1997 and 4th and 6th accused on 3.7.1997 However, notices issued to 3rd and 5th accused were returned unserved. Having waited for 15 days to enable the accused to make payment, and such payment have not been made by the accused, the respondent has preferred the complaint against the accused on the ground that all the accused are involved in the day to day affairs and conduct of the business of the company and are liable for prosecution.
2. It is the above complaint that has been challenged by the accused 5 and 8 in this petition. Mr. V. Vibhishnan, learned counsel appearing for the petitioners would challenge the complaint on the ground that no notice were either issued or served on the petitioners who are arrayed as accused 5 and 8 respectively in the complaint. Inasmuch as no notice have been issued, the petitioners had no opportunity for making payment of the amount as demanded by the respondent/complainant in the notice. Therefore, the complaint against the petitioners are not sustainable and are liable to be rejected. In this connection, the learned counsel would rely upon a judgment of this Court made in Crl.O.P.No.9530 of 1998 dated 7.7.1999 wherein this Court quashed the complaint against the accused who were not served with the notices under Sec.138(b) of the Negotiable Instruments Act hereinafter called “the Act”.
3. On the other hand the learned counsel appearing for the respondent would submit that as per Sec.138(b) of the Act, no individual notice is contemplated to be issued against all the directors. All that the Section requires is only a notice to be issued to the drawer of the cheque. In cases where the offence is committed by the company a notice shall be issued to the drawer of the cheque namely the person who actually issued the cheque on behalf of the company and to the company. The said Section does not mandate the complainant to issue the notice to all the directors. Therefore, it cannot be contended that merely because no notices had been issued to the petitioners who have been arrayed as accused 5 and 8 respectively, the complaint itself is not sustainable. In this connection, the learned counsel would heavily rely upon the following judgments:
(a) Oswal Ispat Udyog & Ors. v. M/S. Salem Steel Suppliers, 1991 (2) M.W.N (Crl.) 177; (b) K.P Minir Selvam v. M.R.T.O Ltd., (2000)2 Crimes 354; (c) Jain Associates & Ors.… v. Deepak Chaudhary & Co.…., (2000)2 Crimes 374; (d) Anita v. Patel K. Kishra, (1996)1 Crimes 412.
Therefore, the learned counsel seeks for the dismissal of the petition.
4. In view of the rival submissions, the question that has to be decided is as to whether a notice as contemplated under Sec.138(b) of the Act is necessarily to be issued to all the directors when the offence is said to have been committed by the company and the petitioners who are the directors of the company can be prosecuted in the absence of such notices.
5. In order to consider the above petition, it would be relevant to extract Sec.138(b) of the Act which reads as follows:
138. Dishonour of cheque for insufficiency, etc. of funds in the account'. Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of the account is insufficient to honour 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 provision of this Act, be punished with imprisonment for a term which may extend to one year, 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 —
(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 fifteen days of the receipt of information by him from the bank regarding the return of the cheque as unpaid.
6. In this connection it would be also relevant to extract Sec. 141 of the Act which reads as follows:
141. Offences by companies: (1) If the person committing an offence under Sec. 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:
Provided 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.
(2) Notwithstanding anything contained in sub- sec. (1), where any offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of, any director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
Explanation: For the purposes of this Section,
(a) “Company” means any body corporate and includes a firm or other association of individuals; and
(b) “director” in relation to a firm, means a partner in the firm.
7. On a plain reading of Sec. 138(b) of the Act, it is seen that when a cheque is presented to a bank is dishonoured, the payee or the holder in due course of the said cheque can make a demand for payment of the said amount of money by giving a notice in writing to the drawer of the cheque. In spite of the receipt of the said notice, if the drawer of the 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 shall be deemed to have; committed an offence. Therefore, when the drawer of a cheque is an individual who has been issued with the notice of dishonour of the cheques with a demand for making such payment is issued under Sec.138(b) of the Act, and fails to make the payment of the said amount of money either to the payee or to the holder in due course shall be deemed to have committed the offence. However, when the offence is committed by a company, by virtue of Sec. 141, where 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 whether issue of notice to the company alone is sufficient is to be considered. In the case of an offence is committed by a company, the cheque is drawn by a person who is in charge of the company on behalf of the company. Therefore, in order to make the company and the drawer of the cheque liable for the offence, a notice is necessarily to be issued to the company as well as the drawer of the cheque on behalf of the company as per Sec.138(b) of the Act. The next-question to be considered and decided is that when a presumption of guilt could be drawn against every person who at the time of the offence was committed, was incharge of and was responsible to the company for the conduct of the business of the company, whether such notices should be issued to such directors of the company also. It is no doubt true that Sec.138(b) speaks on issuance of notice to the drawer of the cheque only. While interpreting the said Section it is to be presumed that unless a notice is issued to the drawer of the cheque under Sec.138(b) and in spite of the receipt of such notice the drawer of the cheque fails to make the payment of the amount of money covered under the cheque to the payee or the holder in due course within 15 days of the receipt of the said notice, the offence is deemed to have been committed. For the purpose of the cause of action for prosecuting the drawer of the cheque, a notice under Sec. 138(b) is mandatory. In this context, it is to be borne in mind that the cause of action for prosecuting either the company or its directors, a notice as contemplated under Sec. 138(b) is absolutely necessary. On the other hand while reading Sec.138(b) read with Sec. 141 of the Act, it is to be a considered whether the cause of action for the offence against a director who has not been put on notice of dishonour of cheques with a demand to make the payment of the amount covered under the cheque within 15 days, could also be prosecuted for the offence. Sec. 141 of the Act, of course, makes a director guilty of the offence and be proceeded against as if he has committed the offence under Sec. 138 of the Act when the offence is committed by a company. However, whether such a prosecution could be launched without there being a cause of action arise against such director as having committed the offence in the absence of any opportunity given to him personally in regard to the dishonour of cheque with consequent demand of payment of money covered under the cheque. This, in my considered view has to be looked at the point of punishment that could be imposed on such director for the offence committed by the company. Of course, when a company is found guilty for an offence under Sec. 138 of the Act, it could be convicted and be punished with a fine which may extend to twice the amount of the cheque. However, the company by itself cannot be punished with imprisonment for a term as contained under Sec. 138 of the Act which may extend to one year, and such punishment of imprisonment could be imposed only as against the directors. When a director is presumably made guilty of the offence committed by the company by virtue of Sec. 141 of the Act, whether he should be sentenced to imprisonment and whether his personal liberty can be curtailed without any opportunity being given to him for compliance of demand under the notice. If the matter is looked at this point, the issuance of notice to the director of the company assumes importance. Of course under Sec. 141 every person who at the time of the offence was committed, was incharge of and was responsible for the company for the conduct of the business of the company shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. The said presumption of guilty arises only when a notice is served under Sec.138(b) of the Act calling upon such person to honour the notice by making payment. Only in the event of failure to make payment within 15 days from the receipt of the notice, the cause of action for prosecuting such director arises. Of course in the case of a cheque is sued by an individual is dishonoured and non- compliance of demand despite notice under Sec. 138(b), it is presumed that such drawer of the cheque is said to have committed the offence. However, without the knowledge of dishonour of cheque and without an opportunity to arrange for payment of the amounts covered under the cheque within 15 days of the date of receipt of the notice can it be called that the director who has not been served with the notice can be proceeded with and punished for imprisonment merely because he happens to be a director and is presumed to be guilty when the offence is committed by the company. In this connection, it is relevant to note the proviso to Sec. 141 which states that “provided 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.” The proviso to Sec. 141 assumes more significance with regard to the service of notices to the individuals including the directors as there is presumption of guilt and a liability to be proceeded against and punished for imprisonment. When such notice is not given to a director it can be very well contended by such director that the offence was committed without his knowledge and in the absence of such knowledge he could not exercise all due diligence to prevent the commission of the offence. Therefore, in the absence of any notice to the individual director, it cannot be said that a cause of action has arisen to prosecute the said director also for the offence. Presumption of guilt and liable to be proceeded against and punished is one thing. Before, proceeding against such person, it is incumbent on the complainant to put such person on notice and in the absence of such notice it cannot be considered that the cause of action arises against such person for being prosecuted. Sec.138(b) refers to issuance of notices to the drawer. Of course while interpreting the said Section, notice to the drawer shall mean notice to the drawer who has drawn the cheque in individual cases. However, when the offence is committed by a company and by virtue of Sec. 141 of the Act 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 are presumed to be guilty of the offence, the word “drawee” as contained in Sec.138(b) cannot be restricted in the sense to the drawer of the cheque alone but also to those who are presumed to be guilty of the offence by virtue of Sec. 141 when more particularly such individuals are liable to be imprisoned for such offence and their personal liberty is infringed thereon. Therefore, I hold that when the offence is committed by a company and by virtue of Sec. 141 of the Act and 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, are presumed to be guilty of the offence, those persons shall be also entitled to the notice under Sec. 138(b) of the Act. In the absence of such notice there cannot be cause of action against those directors as they had no knowledge of the offence and there was no opportunity for them to exercise all due diligence to prevent the commission of such offence.
8. In the judgment' reported in Oswal Ispat Udyog & Ors. v. M/S. Salem Steel Suppliers, 1991 (2) M.W.N (Crl.) 177 referred to by the learned counsel for respondent, of course it is decided in that no notice to all the individual partners is necessary. Similarly, in the judgments reported in K.P Minir Selvam v. M.R.T.O Ltd., (2000)2 Crimes 354, Jain Associates & Ors.… v. Deepak Chaudhary & Co.…., (2000)2 Crimes 374 and Anita v. Patel K. Kishra (1996)1 Crimes 412, the Courts have also taken the same view. However, the point as to the cause of action for the offence as well as the knowledge to the individual person of commission of offence and in the absence of such knowledge there was no opportunity for them to exercise all due diligence, to prevent the commission of such offence, has not been either canvassed, argued, considered or decided in those judgments. In that view of the matter, with great respect to the learned Judges, I do not agree with the decision rendered in the above judgments. No other judgments have been brought to my notice holding contrary view taken by me in this order. On the other hand I am supported by the judgment of this Court made in Crl.O.P.No.9530 of 1998, dated 7.7.1999, wherein this Court has held that in the absence of statutory notice to the petitioner who was a Managing Director of the Company which is mandatory under the provisions of the Negotiable Instruments Act, a complaint could be quashed. Even though it is stated in the complaint that notice sent to the 5th accused was returned unserved, the counsel for petition submitted that no such notice was sent to the 5th accused. This submission of the learned counsel for the petitioner is not disputed by the learned counsel for the respondent/complainant. Further more, nothing has been mentioned in the complaint as to the issue of notice to the 8th accused, hence, it is no doubt clear that no notices were issued to both the petitioners namely, 5th and 8th accused. Therefore, the complaint against the petitioners pending on the file of the learned XVIII Metropolitan Magistrate, Saidapet, Chennai in C.C No. 1826 of 1998 are quashed in so far as the petitioners/accused 5 and 8 are concerned and the petition is allowed. Consequently, Crl. M.P Nos.5949 and 5950 of 1999 are closed.
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