Notice to the company is not sufficient to pin down criminal liability on the Directors for dishonour of cheques under Section 138 of the Negotiable Instrument Act, 1881. The complainant must allege in the complaint that the offence was committed with the consent or connivance of the Directors, as required under Section 141(2) of the Act.

J. S. Sekhon, J - Criminal Miscellaneous Nos. 3703-M of 1990, 3792 M of 1990 and 3794M of 1990. shall be disposed of by this order as these petitions involve the same legal controversy between the same parties. Harbhajan Singh petitioner happens to be the Director of the company M/s. Orion Auto and Steel Industries (Pvt.) Limited, Industrial Area, Banmore, District Morena M P.). This company has also its office at Gwalior. Shri T. P. S. Kalra is another Director of this company. The petitioner company had business dealing with M/s The Star Wire India Ltd. in Criminal Miscellaneous No. 3703-M, the complainant company had supplied some goods and Shri T.P.S Kalra, Director of The accused company issued cheque for Rs. 127,648.96 on 15-5-1989. The complaint company handed over this cheque to its banker, the Bank of Maharashtra, Faridabad, for collecting the amount. The bank sent this cheque to the Central Bank of India but it was returned with the remarks "refer to drawer". The complainant company received intimation on 2-8-1989 of dishonouring of cheque by the banker. Thereafter, it gave notice on 9-8-1989 to the accused company, i. e. M/s. Orion Auto and Steels Ltd., intimating the dishonouring of the cheque and calling upon it to arrange the payment of this amount. On the failure of the accused to make payment of this amount, the complainant company filed complaint on 29-8-1989 for offence punishable under Section 138 of the Negotiable Instrument Act, 1881 (hereinafter referred to as the Act, against Harbhajan Singh petitioner and T.P.S. Kalra, in the capacity of Directors of that company. The trial Court after recording the preliminary evidence summoned the petitioner as well as his co-accused Shri T.P.S. Kalra, to face trial for an offence punishable under Section 138 of the Act.

2. In criminal miscellaneous No. 3792-M of 1990. the facts Are almost the same except that the cheque which was dishonoured was issued by Shri T.P.S. Kalra on 29-5-1989 for Rs. 1,38.830.35. This cheque was also dishonoured on 14-6-1989 with the remarks "refer to drawer".

3. In criminal miscellaneous No. 3794-M of 1990, the facts are almost the same as the petitioner had accepted that the dishonoured cheque was issued on 14-6-1989 for Rs. 19,335.20. This cheque was also dishonoured on 6-7-1989 with remarks "it exceeds arrangement".

4. Harbhajan Singh petitioner seeks the quashment of the complaint and other proceedings resulting therefrom, inter alia, on the ground that he was not incharge of the business of the company and that his prosecution is bad due to non-issuing of notice required under Section 138 of the Act. The provisions of this section reads as under :-

"138. Dishonour of cheque for insufficiency, etc., of funds in the account. Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to any other person from out of that account for the discharge in whole or in part of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank. Such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of the Act, be punished with imprisonment for a term which may extend to one year, or with fine which may extend twice the amount of the cheque, or with both :

Provided that nothing contained in this section shall apply unless :-

(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period or its validity, whichever is earlier;

(b) the payee or the bolder 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 drawer of the cheque, within fifteen days of the receipt of in