1. The petitioners herein are accused Nos. 4 and 5 in S.T. No. 1328 of 2012 on the file of the Judicial First Class Magistrate Court-III, Kottayam, instituted on the basis of a complaint filed by the first respondent herein alleging offence under Section 138 of the Negotiable Instruments Act.

2. According to the complainant, the cheque in question for an amount of Rs. 1.5 Crores was issued on behalf of the first accused Company (M/s. Team Sustain Ltd.) and accused Nos. 2 to 5 were stated to be the directors of the first accused Company who were actively involved in the day to day affairs of the running of the Company.

3. It is now pointed out by Sri. Denu Joseph, learned counsel appearing for the petitioners, that the second petitioner herein (accused No. 5) is no more and that his name may be struck out from the party array.

4. In view of the submission made on behalf of the second petitioner/5th accused, it is ordered that the Registry will ensure that the name of the second petitioner is deleted from the party array.

5. The basic contention urged by the petitioner is that the impugned Annexure A complaint has been filed by the first respondent without fulfilling the mandatory requirement of statutory notice under clause (b) of the proviso to Section 138 as well as Section 93 of the Negotiable Instruments Act. It is alleged that the court below has proceeded to take cognizance and issued summons to the accused without considering the crucial aspect regarding lack of statutory notice to the accused. It is urged that Annexure B notice has been issued by the first respondent only to the first accused Company and not to the other four accused who are alleged to be the directors of the Company. Accordingly, it is urged that the action of the court below in taking cognizance and issuing summons to the petitioner is illegal and ultra vires, etc.

6. Heard Sri. Denu Joseph, learned counsel appearing for the petitioner/accused, Sri. V. Abraham Markos, learned counsel appearing for the first respondent/complainant and Sri. Saigi Jacob Palatty, learned prosecutor appearing for the second respondent/State.

7. It is the case of the complainant that the complaint has been instituted on the basis of the cheque in question which has been issued to meet the liability of the first accused Company. Further it is the case of the complainant that accused Nos. 2 to 4 are the directors of the first accused Company who are actively running the day to day affairs of the said Company and that therefore, they are also vicariously liable in terms of the provisions contained in Section 141 of the Negotiable Instruments Act. The issue as to whether the individual directors of the Company are who arrayed as co-accused in cases where the offence under Section 138 of the Negotiable Instruments Act is alleged against the Company, should be given demand notice as per Section 138 proviso (b) has been considered and decided by the Apex Court in the case Kirshna Texport and Capital Markets Ltd. vs. Ila A. Agrawal and Others, 2015 (2) KLT 543 : 2015 (2) KLJ 534 : 2015 (2) KHC 793 : (2015) 8 SCC 28. A contention was urged that it has been held earlier by the Apex Court in the case N.K. Wahi vs. Shekhar Singh and Others, (2007) 9 SCC 481 : AIR 2007 SC 1454 : (2007) 3 SCC (Cri.) 203 that it was obligatory to issue separate notices to the directors in addition to the notice to the Company. Considering the issue, the Supreme Court held in Kirshna Texport and Capital Markets Ltd.’s case (Supra) that the reason for creating vicarious liability is plainly that a juristic entity, that is a Company would be run by living persons who are in charge of its affairs and who guided the actions of that Company and that if such juristic entity is guilty, those who were so responsible for its affairs and who guided actions of such juristic entity must be held responsible and ought to be proceeded against. Section 141 of the Negotiable Instruments Act again does not lay down any req