AMAR SARAN, J. - (1.) THIS application under section 482 Cr.P.C. has been filed for quashing of the prosecution of the applicant under section 138 of the Negotiable Instruments Act (for short, the Act) and summoning order dated 16.2.2004 and the order rejecting the protest petition dated 11.4.2005.
(2.) THE grounds for challenging the said proceedings and order were that as a matter of fact the applicant had made payment on different dates in respect of the bounced cheque. This contention is mentioned in para graphs 4 and 5 of the applicant's application. Whether the applicant has or has not made the requisite payment is a question of fact which can only be considered by the Trial Court and cannot be considered in the present proceedings under section 482 Cr.P.C. The second contention of the learned Counsel for the applicant was that it was mandatory to make the company also an accused and cognizance should not have been taken when only the applicant was made an accused in the complaint filed by the complainant dated 19.1.2004. It may be mentioned that the applicant has been shown as the managing director of the firm and that there is no legal bar to the complaint only being filed against a managing director of the firm which was engaged in purchase of milk from the dairy of the complainant. This position has been settled by the Hon'ble Supreme Court in Anil Hada v. Indian Acrylic Ltd., (2000) 1 SCC 1. wherein it has been mentioned in para 21 that even if the prosecution proceedings against the company were not taken or could not be continued, it is no bar to the proceedings against the other persons falling within purview of sub-sections (1) and (2) of section 141 of the Act. The learned Counsel for the applicant was unable to show any case law to the contrary.
(3.) THE next submission made by the learned Counsel for the applicant is contained in paragraph 7 of the supplementary affidavit to the effect that no notice was given under section 138(b) of the Act to the company as well as to the applicant requiring them to make payment on the defaulted amount. As I have held above that it was not imperative for the complainant to make the company an accused, hence there was no question of serving notice on the company. So far as the applicant is concerned, it is clearly mentioned in the complaint itself that the notice was given to the applicant on 18.12.2003 to make the payment of the amount in respect of which the cheque has remained unencashed. Whether or not this notice was in fact given is a matter to be in- vestigated by the Trial Court and not this Court in proceedings under section 482 Cr.RC.;