G.K.VYAS, J. - (1.) BY way of filing the present petition under Section 482, CrPC, the petitioner has challenged order dated 24.07.2004 passed by the learned Judicial Magistrate, Pali in Criminal Case No. 191/2003.
(2.) FACTS mentioned in the petition indicate that the respondent filed a complaint against the petitioner and others before the Additional Chief Judicial Magistrate, Pali under Section 138, Negotiable Instruments Act, stating therein, that Sargam Sputex Ltd. Bhilwara is engaged in processing of suitings and petitioner Rajkumar Malhotra is its Managing Director. It is further stated that the complainant is owner of M/s Anil Dyes and Chemical Company doing business of selling chemicals and, since 1997, he had been selling chemicals to the firm in which the petitioner is Managing Director. It is contended in the petition that a total sum of Rs. 5,96,000/- fell due in the firm till 31.03.1999 and 3 cheques for Rs. 2,00,000/- each, bearing No. 658413, 658414 and 658415 were issued to the complainant firm by the firm in which the petitioner is Managing Director. The said cheques were deposited in the Bank and were dishonoured. Thereafter, notice was given as required under Section 138(b) of the Negotiable Instruments Act. However, no payment was made within the stipulated time, therefore, complaint was filed before the Magistrate. The learned Additional Chief Judicial Magistrate Pali, upon the complaint and statement of the complainant, took cognizance vide order dated 20.09.2002 passed in Criminal Case No. 144/2000. Cognizance of offence was taken against the firm and its Direc tors. Against the said order of taking cognizance, three Directors preferred revision petition before this Court and the said revision petition was registered as S.B. Criminal Revision Petition No. 213/2002. This Court allowed the said revision petition and quashed the order of cognizance taken against the petitioners (in the revision petition) who were not in-charge and responsible for the conduct of the company's business at the relevant time by following the judgment of the Supreme Court. The said order of this Court is reported in 2003 CrLR 173 (Raj.). At the time of challenging the cognizance order against the three Directors of the Company it was specifically contended that in the complaint there is no allegation that cheques were issued by Raj Kumar Malhotra, present petitioner with consent and knowledge of the petitioners who were Directors of the Company. It was categorically mentioned in that petition that cheques were issued by Raj Kumar Malhotra, present petitioner under his signature and assured the non-petitioner about sufficiency of the amount in the Bank account, therefore, following the judgment of the Supreme Court and the fact that the cheques were issued by the present petitioner, the other three Directors who were not incharge and responsible for the conduct of the business of the company, were held not liable for prosecution. Accordingly, the cognizance order against them was quashed. The present petitioner is admittedly signatory of the cheques and he is Managing Director of the firm; and on behalf of the firm, he issued the cheques in question in favour of the complainant firm Anil Dyes and Chemical Factory, Pali. The present petitioner, after quashing of the proceedings against the other Directors filed an application before the learned trial Court that the order of cognizance may be recalled because the said order has been passed without giving any opportunity of hearing; and further it is contended that notice was given to the company and not to Raj Kumar Malhotra, petitioner in person, there fore, the cognizance order is required to be recalled and may be cancelled. It is also contended in the application that notice to Raj Kumar Malhotra was to be given in accordance with provisions of Proviso (b) to Section 138. The said proviso to Section 138 of the Negotiable Instruments Act reads as under:-- "Provided that nothing contained in this section shall apply unless -- (a).... (b) the payee or the holder 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 information by him from the bank regarding the return of the cheque as unpaid;" The learned Magistrate rejected the application filed by the petitioner for recalling of the order of cognizance. It is specifically observed in the order that as per the judgment rendered in AIR 2001 SC 518 in which it has been held that having regard to the object of issuance of such notice, the notices cannot be construed in a narrow technical way without examining the substance of the matter. It is admitted position of the case that on behalf of the company the petitioner Raj Kumar Malhotra issued cheques in question in the capacity of Managing Director and notice was given to the company and as such it was incumbent upon him to see that the payments are made to the satisfaction of the cheques within the stipulated period of 15 days. It is not disputed by the petitioner that he is holding the post of Managing Director, more so in the revision petition filed by the other Directors before this Court, specific plea was taken that they are not responsible for the conduct of the business of the company and, if any act is done without their consent and knowledge by Raj Kumar to Malhotra then, in that case, they are not responsible. Their contention prevailed with the Court and the said revision petition was allowed holding that Raj Kumar Malhotra (present petitioner) was working as Managing Director of the company and he had issued the cheques on behalf of the company. Obviously the notices were issued to the company and payments were to be made by the company. In the circumstances, being active representative of the company in the transaction with the complainant firm the petitioner can be arrayed accused for non-payment of the amount upon the cheques so issued being dishonoured.
(3.) PER contra, the learned Counsel for the non-petitioner argued that the present petition is not maintainable inasmuch as the petitioner has not challenged the order dated 20.05.2002 and if the petitioner seeks to agitate the validity of the order whereby cognizance has been taken of the offence against him, he must challenge that order. Learned Counsel for the non-petitioner contended that after the recent judgment of the Supreme Court in Adalat Prasad's case the order of cognizance cannot be recalled. Learned Counsel for the non-petitioner contended that at the time of challenging the order of cognizance against the other Directors, it was specifically contended that the present petitioner who is Managing Director of the company was responsible for payment upon the cheques issued by him on behalf of the company, therefore, obviously when notice was served upon the company the petitioner was performing and acting on behalf of the company and as such cognizance taken against him for the offence under Sec tion 138 of the Act cannot be said to be illegal.;