IMPORTANT POINT
If the company is not a party in a proceeding u/s 138 r/w 141, its officers cannot be proceeded against.

JUDGMENT

SUDHANSU JYOTI MUKHOPADHAYA,J.

1. Leave granted.

2. This appeal is directed against the judgment dated 13th August, 2007 passed by the High Court of Delhi at New Delhi in Criminal Miscellaneous Case No.2380 of 2004. By the impugned judgment, the High Court held that the complaint under Section 138 read with Section 141 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the, 'Act') was barred by limitation and quashed the summon order against respondent no.2-Visionaries Media Network (hereinafter referred to as the, 'Company'). It further held that the dispute qua the appellant (petitioner no.2 before High Court) is within limitation and affirmed the summon order against the appellant.

3. The factual matrix of the case is as follows: A subscription agreement was entered into between respondent nos.1 and 2 whereby respondent no.2-Company was appointed as distributor of Star Channels and collecting subscription fee for the same. On 27.12.2003, respondent no.2-Company issued three cheques bearing nos.790913, 790912 and 790911 for Rs.6,00,000/-, Rs.5,00,000/- and Rs.5,00,000/- respectively drawn on the Indian Overseas Bank, Gandhi Nagar, Jammu.

The aforesaid three cheques were presented before the Indian Overseas Bank, Gandhi Nagar, Jammu and were dishonoured on 6.01.2004. Respondent No.1 served notice on respondent no.2-Company with a demand notice separately for all the three cheques. Respondent no.2-Company replied to the said notice on 20.01.2004 informed respondent no.1 that payments were stopped because of their inability to stop the piracy due to which the cable operators did not make payments. Thereafter, respondent no.1 issued second notice dated 28.01.2004 on the appellant based on the same facts and based on the same memo of dishonor in respect of the aforesaid three cheques. Respondent no.1 also issued a corrigendum of the same date to the said notice. The appellant submitted reply to the said notice on 3.02.2004.

4. Respondent no.1 filed a Criminal Complaint under Sections 138 and 141 of the Act on 17.03.2004. According to appellant, respondent no,1 concealed the material fact of having earlier issued notice dated 14.1.2004 with regard to the aforesaid three cheques and by misleading the Court got summons issued by Metropolitan Magistrate in Complaint No.698 of 2001 to the appellant and respondent no.2-Company.

5. Thereafter, respondent no.2-Company and appellant jointly filed Criminal Miscellaneous Petition No.2380 of 2004 under Section 482 of the Criminal Procedure Code, 1973 before the High Court of Delhi at New Delhi for quashing the aforesaid criminal complaint filed by respondent no.1. In its reply, respondent no.1 taken the plea that first notice dated 14.01.2004 was not a notice under Section 138 of the Act. It was contended on behalf of the appellant that he was only vicariously liable on behalf of respondent no.2-Company. Learned counsel for the appellant placed reliance on decisions of this Court in support of his claim.

6. The High Court by impugned judgment while recording the stand taken by respondent no.1 that letter dated 14.01.2004 constituted a valid notice under Section 138 of the Act and hence the complaint based on second notice against respondent no.2-Company was not maintainable and quashed the summon issued by the Trial Court against respondent no.2-Company. However, so far as appellant is concerned, the High Court relying on decision of this Court in Anil Hada v. Indian Acrylic Ltd., (2000) 1 SCC 1, held that the proceeding against the Director can be issued even in absence of the Company being impleaded, The High Court further held that the summoning order was valid since the first notice was not addressed to the appellant and the second notice which was also addressed to the appellant was issued within time and. therefore, criminal complaint filed by respondent no.1 against the appellant on the basis of the said notice is maintainable.

7. Learned counsel appearing on behalf o