The prosecution of an officer of a company for an offence under Section 138 of the Negotiable Instruments Act is valid without impleading the company, and the court at the place of the creditor's residence has jurisdiction to try the offence.

1. THIS order shall govern the disposal of Cr. Rev. Nos. 2626 to 2630 of 1996 also.

2. THESE petitions have been filed for quashing Case Nos. C/1763 of 1996, C/ 1762 of 1995, C/1761 of 1995, Case No. C/3 of 1996 (T. R. 67 of 1996), C/116 of 1996 and C/1711 of 1995 being T. R. No. 83 of 1996, pending in the Court of Additional chief Judicial Magistrate, Sealdah. The petitioner is a landlord in respect of the premises occupied by petitioner orissa Industries Limited, having its principal office at Rourkela. It also has a local office in the tenanted premises owned by complainant at Calcutta. The present petitioner Mr. K.P. Jhunjhunwala is one of the Directors of the company and in charge of company's local office. The petitioner issued certain post-dated cheques on behalf of his company which ultimately bounced. The opposite party served a notice in each case and required him to make payment within one week failing which the prosecution would be launched. Since no payment was made separate prosecution for each default has been launched.

3. THE petitioner has urged the following grounds :-

(i) Since the company has not been made an accused, an authorised signatory or a Director alone is not liable to be prosecuted;

(ii) The notices of demand that were served on him were not valid;

(iii) That the trial Court has no jurisdiction since no part or of cause of action arose with the jurisdiction of the court below.

4. THE ld. counsel for the petitioner has urged that since the lawyer's notice sent under proviso (b) to section 138 of the Negotiable Instruments Act, requires the petitioner to pay the amount within seven days of the receipt of notice, whereas section 138 of the N. I. Act requires the payment to be made within 15 days, the notice is bad in law. Proviso (b) of Section 138 of the Negotiable Instruments Act runs thus :-

"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 drawn of the cheque, within 15 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid."

5. THE section, therefore, only provides that a notice inviting the attention of the drawer of the cheque towards bouncing of the cheque should be served and he should be called upon to make payment of the amount mentioned in the cheque, if these two conditions are satisfied, the notice cannot be said to be bad in law. Asking the petitioner to pay the amount within one week is of no consequence since every body is supposed to know law. The petition of complaint has certainly been filed after more than 15 days of service of each notice. It has been laid down by the Privy Council in case of Harihar Banerjee v. Ram Sashi Roy, ILR 46 Cal 858 that a notice is to be construed not with a desire to find fault which would render the notice defective but to be construed ut res majis valeat quam pereat (it may rather become operative than null. This view was affirmed by the Apex Court in case of Mangilal v. Subal chowdhury, AIR 1965 SC 101. I, therefore, hold that the notice was valid.

6. THE next contention of the Id. petitioner's counsel is that since the company has neither been served with notice nor has been made an accused in the case, the prosecution is not competent. In case of Sheo Ratan Agarwal v. State of M.P. , AIR 1984 SC 1824, it has been laid down that there is no statutory compulsion that the person-in- charge or any officer of the company may not be prosecuted unless he be ranged along side of the company itself. The Apex Court made the aforesaid observation while interpreting section 10 of the E. C. Act which runs thus :-

"(1) If the person contravening an order made under section 3 is a company, every person who, at the time the contravention 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