The liability for a dishonoured cheque under S.138 and the prosecution of company directors under S.141 of the Negotiable Instruments Act are determined based on the notice of demand and the definition of the 'drawer of the cheque'.

1. The petitioner who is the accused No. 2 in the Case No.C/374/89 under S.138 of the Negotiable Instruments Act, 1881 as amended by the Banking Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act, 1988 now pending before the Ld. Metropolitan Magistrate, 5th Court, Calcutta has moved this Court under S.401 read with S.482 of the Criminal Procedure Code, 1973 for quashing the said proceedings against him on the following allegations. On November 15,1989 the opposite party being the Director (Commercial) of M/s.T.S. Foundry Equipment (Private) Limited having its registered office at 2, Ganesh Chandra Avenue filed a petition of complaint before the Ld. Addl. Chief Metropolitan Magistrate, Calcutta charging the petitioner with an offence under S.138 as Amended by the Banking, Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act, 1988. In the aforesaid complaint it was, inter alia, agreed:

"That the accused No.2 Dilip Jaiswal, who is the Director of M/s. Hisco Steel Private Limited, the accused No.1 on behalf of his company placed an order on 5-2-1989 to the complainant's company for supplying various sizes of moulding boxes. Pursuant to the aforesaid order the complainant's company on two different dates supplied total 45 numbers of moulding boxes to the accused No.1 under proper receipt on 12-9-1989 and 13-9-1989 respectively. Thereafter the complainant's company submitted two bills one for Rs. 46,582.50 paise and another for Rs.1,06,665,60 paise when on October 12,1989 the accused No.2 on behalf of his company the accused No.1 issued a cheque in favour of the complainant's company towards the payments of the cost of the said articles. On the same day the accused No.2 as the Managing Director of Hotel Hindustan International by a letter dated 12-10-1989 guaranteed the payment of the dues of the complainant's company amounting to Rs.1,52,648.10 paise and issued a post dated cheque for Rs.1,52,648.10 paise, on consideration that the said cheque be presented for encashment in the event the earlier cheque dated 12-10-1989 was dishonoured for any reason. The complainant presented the cheque dated 12-10-1989 to the Banker for encashment. On October 17,1989 the bank returned the said cheque unpaid with an endorsement "exceeds arrangement". Thereafter the complainant presented the cheque dated 23-10-1989 to Banker for encashment and the said cheque was also returned unpaid with an endorsement "Payment stopped by drawer". It was further alleged in the mean time the accused company by a letter No.Hisco/Works/MK/89 dated 14-10-1989 written by the Factory Manager of accused No.1 (HISCO) informed the complainant company that those 45 numbers of moulding were rejected and advised the complainant to collect the same within 48 hours from the date of receipt of the letter. The said letter was received by the complainant on 19-10-1989. The complainant's company by a letter No.GEN/H-2/89-90/471 dated 25-10-1989 denied and disputed all the allegations made in the aforesaid letter. The complainant by a letter No. TSP/HISCO/89-90 dated 25-11-89 sent to the factory at 68, Jessore Road, Calcutta-55 as to the Head Office of the accused at 8, Rajendra Deb Road, Calcutta-700 007 under registered post with A/D in writing for the payment of the aforesaid dues at Rs.1,52,648.10 paise being the unpaid price of 445 Nos. of moulding boxes sold to the accused within 15 days from the date of receipt of the said notice and were duly received by the accused. It is further alleged that both the accused despite the receipts of the aforesaid notice of demand dated 25-10-1989 failed and neglected to pay the said sum of Rs. 1,52,648.10 paise to the complainants company within the stipulated time."

2. The learned Additional Chief Metropolitan Magistrate on November 25,1989 took cognizance of the offence and made over the case to the Metropolitan Magistrate, 5th Court, Calcutta for every enquiry and trial under S