A K GOENKA Vs. STATE

JUDGEMENT

(1.) Admit. This petition is directed against the order of the learned Metropolitan Magistrate dated 29.5.2000 whereby the learned Metropolitan Magistrate upon an application moved by the petitioner herein refused to drop proceedings initiated against him by his earlier order summoning him to face trial upon a complaint made by the respondent.

(2.) Heard learned Counsel for the parties.

(3.) It is the case of the petitioner that he was not given a notice, as required under Section 138(b) of the Negotiable Instruments Act (for short 'the Act'). Learned Counsel for the petitioner further submits that the petitioner was not the person in-charge of the affairs of the Company at the time when the offence was committed. This, the learned Counsel states on the strength that the petitioner was in custody in Tihar Jail with effect from 2.2.1998 to 4.5.1998.He, therefore, contends that a notice under Section 138(b) of the Act is mandatory upon the Director who is being prosecuted for the offence committed by the Company under Section 138(a) of the Act. He also submits that only such Directors who are in-charge of the affairs of the Company at the time the offence under Section 138 of the Act is committed can be prosecuted. It is further submitted that since the petitioner was in custody in February and May, 1998 when the offence was allegedly committed, the petitioner was not in-charge of conduct of business of the Company at that time, therefore, could not be prosecuted under the deeming provision in Section 141 of the Act.