VIJAY KUMAR SHARMA AND ANOTHER Vs. CHHIDA MAL

JUDGEMENT

(1.) By this order, I propose to dispose of Crl. Misc. No. M-24666 of 2010, Crl.Misc.No.M-25003 of 2010, Crl.Misc.No.M-25004 of 2010 and Crl.Misc.No.M-25005 of 2010 as common questions of facts and law are involved in these cases. For the sake of convenience, facts are being taken from Crl. Misc. No. M-24666 of 2010.

(2.) A complaint under Section 138/ 142 of the Negotiable Instruments Act, 1881 (for short '1881 Act') and Section 420 IPC was filed by the respondent against M/s Yusuf Engineering Co. Pvt. Ltd. through its authorized signatory/Legal Advisor Shruti Parkash Pandey on 20.9.2006 in which the company was summoned as an accused vide order dated 31.10.2006 by the Judicial Magistrate, Ist Class, Palwal. During the pendency of the complaint, an application dated 14.3.2009 (Annexure P-4) was moved by the complainant praying for impleading the Directors of the company in the array of accused. The said application was allowed by the Court vide order dated 26.5.2009 and notices to the added accused were also issued by the Court. Prior to filing of the present complaint, the complainant had filed suit for declaration and permanent injunction that the sale deed dated 4.5.2006 registered in favour of M/s Yusuf Engineering Company Pvt. Ltd. be declared as null and void. It is at the stage of summoning of the petitioners that the present petition has been filed under Section 482 Cr.P.C. for quashing of the complaint, impleadment order as also the summoning order dated 26.5.2009 (Annexure P-5) passed by the Judicial Magistrate, Ist Class, Palwal.

(3.) It is the submission of the counsel for the petitioner that the present complaint against the petitioners cannot proceed as the provisions contained under Section 138 of the 1881 Act have not been complied with. As per the said Section, in case of dishonoring of cheque, a demand for payment of the amount of money has to be made by the payee or holder of the cheque by giving a notice in writing to the drawer of the cheque within 30 days from the date of receipt of information by him from the bank regarding the return of the cheque as unpaid. After such service of notice, if the drawer fails to make the payment of the amount within 15 days from the date of receipt of such notice, the payee or the holder of the cheque can proceed against the person under Section 138 of the 1881 Act. In the present case, notice as per clause (b) of Section 138 has been served only on the company and, therefore, the petitioners cannot be held liable and cannot be proceeded against under Section 138 of the 1881 Act. His further contention is that as per Section 142 of this Act, the Court could not have taken cognizance of the offence punishable under Section 138 of the 1881 Act as per clause (b) thereof, if the complaint is not made within a period of one month from the date of cause of action arisen under clause (c ) of proviso of Section 138. His further contention is that in the complaint it is nowhere mentioned as to how and in what manner the petitioners, who are the Directors of the Company, were responsible to the company for the conduct of its business. He, accordingly, prays for quashing of the impleadment order as also the summoning order dated 26.5.2009. In support of this contention, reliance has been placed on the judgment of this Court in the case of Surinder Singh and others vs. Punjab State Warehousing Corporation, 2010 2 RCR(Cri) 416.