IMPORTANT POINT
When a Company, either the Company alone or the person incharge of business of Company alone, commits offence u/s 138 of Negotiable Instruments Act or both can be prosecuted for offence.

K.T. Thomas, J. - The petitioner is the Managing Director of a public limited company. He is being prosecuted for the offence under S. 138 of the Negotiable Instruments Act, 1881 (for short the Act') on the allegations, inter alia that he issued a cheque in favour of the complainant (first respondent herein) which was dishonoured by the drawer bank as the drawer did not have necessary amount in his account, and that a notice was issued to the petitioner to which no reply was even sent.

2. As the magistrate before whom the complaint was filed cognizance of the offence and issued process against the petitioner, he filed this petition under S. 482 of the Code of Criminal Procedure (for short the 'Code') for quashing the complaint.

3. The learned counsel for the petitioner in support of his contention that the complaint is liable to be quashed has raised three valid points. They are:-(1) the offence was committed by the company and not the petitioner; (2) prosecution of the petitioner without the company being made an accused is not sustainable; and (3) even if prosecution can be launched against the petitioner the present complaint is devoid of necessary averments to constitute the offence under S.138 of the Act.

4. Regarding the first contention, it has to be pointed out that the complaint proceeds on the premises that the cheque was issued by the petitioner. Hence it is not proper to quash the complaint at the initial stage by accepting the contention that petitioner has not drawn the cheque. The second contention cannot be upheld in view of the decisions of the court in Cri. M.C. 129/93 dated 9.6.1993 which repelled a similar contention holding that when the offence was committed by a company, either the company alone or the person in charge of the business of the company alone, or both of them together, can be prosecuted for the offence under S. 138 of the Act. In support of the said view this Court relied on the Supreme Court decision in Sherotan Agarwal v. State of M.P1.

It was the third contention which was argued in detail before me. It was raised on the assumption that the complaint does not reveal that the petitioner failed to make payment within fifteen days of receipt of the notice. No doubt, offence under S. 138 of the Act is completed only when there is failure to make payment of the amount of money to the payee within fifteen days of the receipt of notice. What is stated in para 0f the complaint is the following: "Complainant has issued notice on 4.6.1991 little accused through his Advocate intimating that the cheque has been dishonoured and for return of the amount with interest. The accused had received the notice on 7.6.1991 but he has not cared to sent any reply also."

6. It is true that the complaint does not contain in so many words that the petitioner did of make payment of the amount of money after receipt Of notice Even so, one can reasonably make out from the complaint that the complaint 1.13 filed as the petitioner did not make any payment or sent any reply to the notice. But, according to the learned counsel, the Court cannot read anything like that into the complaint, so long as the complaint did not expressly contain such an averment.

7. Learned counsel laid emphasis to S.142 (a) of the Act which says that "not with standing anything contained in the Code of Criminal Procedure 1973 (2 of 1974) no court shall take cognizance of any offence punishable under S. 138 except upon a complaint in writing, made by the payee or, as the case may be, the holder in due course of the cheque". The argument is that since the legislature Imposed a prohibition against taking cognizance unless certain conditions are satisfied and one such condition being that there must be "a complaint in writing" it means that the complaint should contain all the necessary fact to make out the offence. The argument appears to be that all the elements of the offence must be categorised in express terms in the complaint. For further