Decided on June 28,1993

SUNDARAJ Appellant
C P Mohan Babu Respondents


- (1.)Petitioners are now arrayed as accused in the trial Court for offence under Section 138 of the Negotiable Instruments Act. A complaint was filed by the firm of which first respondent is the Managing Partner. The complaint is sought to the quashed on three grounds :
"(1) A prosecution without a company on the array of the accused is not maintainable as the offence was committed by the company. (2) Notice envisaged in Clause (c) of the proviso to Section 138 was served on the petitioners only on 16.5.91 and hence a complaint filed on 2.7.91 is beyond time and congnizence of the offence should not have been taken thereon. (3) Absolutely no case is made out against the second petitioner who is shown as Director of the company".

(2.)Even if it is assured that the offence was committed by M/s. Chickoo Foods Pvt. Ltd. the complaint cannot be said to be not maintainable without the company being made an accused. That legal point has been decided by this Court (vide Crl. M. C. No. 129/93 dated 9.6.93). Learned Counsel then contended that he may be allowed to canvass the correctness of the said legal position if subsequently a different view is adopted either by this Court or by the Supreme Court. It is made clear that the petitioners are free to take advantage of any such change in the legal position.
(3.)Regarding the second ground, it is contended that notice was actually served on 16.5.91 and the complaint was filed only on 2.7.91. There seems to be a dispute for the complainant regarding the factual position canvassed by the petitioners. It is open to the complainant to establish through evidence that he filed the complaint within the time permitted by the law.

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