JUDGMENT :

(Prayer: Criminal Original Petition filed under Section 482 Cr.P.C. to call for the records and quash the proceeding in S.T.C.No.1085 of 2015 on the file of the learned Judicial Magistrate, Kotagiri in so far as it relates to the petitioners herein.)

1. This Petition has been filed under Section 482 of the Code of Criminal Procedure by A-2 and A-3 in S.T.C.No.1085 of 2015 pending on the file of the learned Judicial Magistrate, Kotagiri, seeking to quash the said S.T.C.No.1085 of 2015.

2. A-1 is Imperial Tea Company (P) Limited., represented by its Chairman A-2/first petitioner has been shown as Director of A-1. A-3/second petitioner has been shown as a private individual. A-4 is John Gerald and A-5 is Bonita Maria Dinesh.

3. In the complaint filed, it had been stated that A-1 is a Tea Broker Company, and that A-2 and A-3 are the Chairman and Director of the Company. It had thereafter been stated that “the Company has been run by the 4th and 5th accused ......”. With respect to the transactions between A-1 and the defacto complainant which is also a tea factory. A-5 had issued a postdated cheque dated 28.05.2015; on 02.04.2015 by cheque bearing No. 035635 drawn on State Bank of Travancore, Coonoor, for Rs.3,50,754/- in favour of the respondent/defacto complainant from the account of A-5.

4. In the present petition seeking to quash S.T.C.No. 1085 of 2015 which had been taken cognizance consequent to the said complaint, the petitioners have stated that it is the case of the respondent that it was only A-4 and A-5 who are running the A-1 Company and also that the cheque which had been issued and which had subsequently been dishonoured had been issued by A-5 from and out of the account of A-5.

5. Prior to filing of the complaint, the defacto complainant caused an Advocate notice to be issued to (1) Imperial Tea Company private limited, (2) Mr. John Gerald and (3) Mr. Bonita Maria Dinesh. The notice was not issued to the present petitioners herein. It had therefore been contended in the petition that S.T.C.No.1085 of 2015 should be quashed in so far as the petitioners are concerned.

6. Heard arguments advanced by Mr. B. Kumarasamy, learned counsel for the petitioners and Mr. L. Mouli, learned counsel for the respondent.

7. The facts are simple and cannot be denied or disputed.

8. A-5 had issued a post dated cheque from her personal account to the respondent, which cheque when presented for payment had been returned as dishonoured by the bankers. Notice as stipulated under Section 138 of the Negotiable Instruments Act 1881 had been issued by the advocates on behalf of the respondent to(1) Imperial Tea Company private limited, (2) Mr. John Gerald and (3) Mr.Bonita Maria Dinesh. It had not been issued to the present petitioners/A-2 and A-3. Further in that complaint, it had not been stated that the petitioners are in control of the day-to-day activities of A-1 or that they are in-charge of the day-to-day activities of A-1. It had been very specifically stated that A-4 and A-5 alone are running A-1 Company.

9. The learned counsel Mr. B. Kumarasamy pointed out the above facts and stated that the present petitioners/A-2 and A-3 cannot therefore be forced to undergo the ordeal of trial particularly when notice prior to filing of the complaint had not been issued to them. Further the cheque had been issued and signed only by A-5 in her personal capacity from and out of her personal bank account.

10. Mr. L. Mouli, the learned counsel for the respondent however stated that A-5 had issued the cheque on instructions from the other accused and therefore all the accused should face trial and the learned counsel further stated that the facts mentioned should be decided during the course of trial.

11. I have carefully examined the arguments advanced.

12. Admittedly notice as required under Section 138 of the Negotiable Instrument Act had not been issued to the petitioners. There is no averment that they are in-charge of the day-to-day activities of A