JUDGMENT

1. A complaint case was filed by the respondent M/s Silver Line Incorporation against the petitioner Gopal Gupta C/o Vijay Polymers Pvt. Ltd. being Complaint Case No.1274/2009 under Section 138 of the Negotiable Instruments Act (in short `NI Act') alleging that on the request of the petitioner, some goods were supplied by the complainant and in lieu of the supply, 8 cheques were issued totaling for a sum of Rs.3,88,684/- drawn on Union Bank of India, Punjabi Bagh, New Delhi. When the cheques were presented, the same were returned unpaid with the endorsement `funds insufficient' vide memos dated 18th December, 2004. The complainant sent legal notice dated 20th January, 2005 which was duly served on the petitioner/accused by way of registered AD post and UPC. Despite service of legal notice, neither any reply was received nor payment was made hence offence punishable under Section 138 NI Act had been committed.

2. Since the complaint was barred by limitation and not maintainable on other counts as well, the petitioner filed a petition being Crl.M.C. 1609/2008 before this Court which was allowed vide order dated 11th May, 2009 to the extent the order of the Metropolitan Magistrate condoning the delay was set aside and the matter was remanded back to learned Metropolitan Magistrate for passing fresh orders after hearing the accused. Thus, according to the petitioner, the issue of maintainability of the complaint itself was not decided vide order dated 11th May, 2009. Thereafter, the learned Metropolitan Magistrate dismissed the application seeking condonation of delay filed by the respondent which order was upheld in the revision petition by the learned Additional Sessions Judge. The respondent filed a petition before this Court being Crl.M.C. 3768/2010 wherein vide order dated 17th November, 2011 delay was condoned subject to payment of Rs.25000/- as cost and the matter was remanded back. Learned Metropolitan Magistrate summoned the petitioner afresh vide order dated 16th January, 2012.

3. The sole ground urged before this Court seeking quashing of the criminal complaint is that the cheques have been drawn by the petitioner as Director of the Company for an account maintained by the company and not as an individual. Since no legal notice was issued to the company nor the company has been made an accused, thus no summons could be issued on the criminal complaint against the petitioner, who acted in his capacity as the Director of the company in view of the decision of the Supreme Court reported as (2012) 5 SCC 661 Aneeta Hada Vs. Godfather Travels and Tours Pvt. Ltd..

4. Learned counsel for the respondent on the other hand contends that the complaint was filed by the respondent in the year 2005 when the decision was not rendered by the Supreme Court in case of Aneeta Hada (supra) and rather the legal position was that a complaint was maintainable even against the drawer of the cheque even if the company had not been impleaded as an accused. Reliance is placed on the decision of the Supreme Court reported as (1999) 5 SCC 693 Bilakchand Gyanchand Co. Vs. A. Chinnaswami.

5. In Bilakchand Gyanchand Co. (supra) the Supreme court held that summons issued to the Managing Director of the company who was the signatory of the cheque were justified and High Court erred in quashing the same in a petition under Section 482 Cr.P.C. Even in the decision reported as (2001) 1 SCC 631 Rajneesh Aggarwal Vs. Amit J. Bhalla relied upon by learned counsel for the respondent, the Supreme Court upheld the trial for an offence punishable under Section 138 NI Act where notice has been issued to the Director concerned of the drawer company who had signed the cheque. The Supreme Court relying upon its earlier decision in Bilakchand Gyanchand Co. (supra) held that the notice to the Director who had signed the cheque was sufficient notice and the complaint was not liable to be quashed.

6. However, the larger Bench of the Supreme Court in A