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Only the 'drawer' is liable

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13th-Jan-2018       
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High Court Division
(Criminal Revisional Jurisdiction)
Farah Mahbub J
Mahmudul Hoque J
Shahidul Alam @ S Alam and another. ..........Complainant-Petitioners
vs
Dr Jahid Hossain Prodhan and another...............Opposite-Parties
Judgment
August 17th, 2017
Negotiable Instruments Act (XXVI of l881)
Section 138
Notice under Section 138 is required to be served upon "the drawer" of the cheque so as to give the drawer an opportunity to make the payment and escape the penal consequences, ..... (12)
Negotiable Instruments Act (XXVI of 1881)
Section 138
The person who writes a cheque or draft instructs the drawer to pay someone else. The company is the "drawer" of the cheque. The wordings as used in Section 138 is very clear to make only the "drawer" liable and thus, leaves no room for any doubt or ambiguity. . ..... (13)
Negotiable Instruments Act (XXVI  of 1881)
Section 138
Since company is a juristic person, it would be managed by living persons who guided the act of such a juristic person to commit such a glaring default and hence, should be held responsible. . ..... (14)
Negotiable Instruments Act (XXVI of 1881)
Sections 138 and 140
The purport and scope of Section 140 does not lay down any requirement that in the eventuality of an offence Under section 138, the directors must individually be issued separate notices under Section 138 .
No notice is additionally contemplated to be given to the accused No.2 as one of the directors of the company. Therefore, service of notice upon the accused No. 2 beyond time is immaterial where there is nothing in Section 138 which may even remotely suggest insurance of notice to anyone other than "drawer."     (15)
Negotiable Instruments Act (XXVI of 1881)
Section 138
The Managing Director being the chief executive of the company his knowledge may be deemed to be the knowledge of the company and the directors as well.,    (15)
Negotiable Instruments Act (XXVI of 1881)
Section 138
A single notice. of demand issued to the Managing Director of the company will henceforth, be considered to have been issued to the directors  as well and the liability of directors can arise on the basis of such notice. ...... (16)
Negotiable Instruments Act (XXVI of 1881)
Section 138
Since the cheque in question had been issued by the Company  as drawer, it constitutes single cause of' action and there cannot be any question of splitting up of the cause of action where the accused No. 2 remains absconding and the law does not contemplate separate notice to be given to every director. .. .... (17)
If it was the contention of the directors arrayed as the accused in a prosecution under the Act, that the offence was committed without their knowledge or that they had exercised due diligence to prevent such commission of offence, it would be a matter of defence to be considered at the stage in the trial and certainly not at this stage.
Jesmin Sultana Advocate-For the Complainant Petitioners.
Moinuddin Farooqui with Md Shahidul Islam, Advocate-For the Opposite Party No. 1.
AKM Zahirul Huq. DAG with M Masud Alam Chowdhury. AAG and Sathi Shahjahan AAG-For the State.
Judgment
Mahmudul Hoque J : This Rule was issued under Section 439 of the Code of Criminal Procedure at the instance of the complainant petitioners calling upon the opposite parties to show cause as to why the order dated 25-10-2015 passed by the learned Sessions Judge and Special Judge, Court No. 4 Dhaka in Sessions Trial Case No. 129 of 2015 arising out of Metro Sessions Case No. 8582 of 2015 corresponding to CR Case No. 60 of 2015 under Section 138 of the Negotiable Instruments Act, 1881, discharging the accused persons from the case should not be set aside and/or pass such other or further order or orders as to this Court may seem fit and proper.
2. Facts relevant for disposal of this case, in short, are that the accused persons are dealing with the housing business under the name and style of M/s ARCADIA PROPERTY DEVELOPMENT LTD. and they constructed 35 apartments out of which the said company sold 23 apartments to the complainants along with 20 others. At the time of delivery of possession some works could not be completed by them. The accused persons requested the purchasers to complete those works at their costs as they had no money to undertake the said works and promised to repay the same as soon as possible. Considering the request and necessity of habitation the flat owners agreed to complete those works at their own costs and completed some of the works spending an amount of Taka 17,33,590.
3. For payment of the said amount the accused persons for and on behalf of the company issued a cheque dated 29-2-2015 in the name of the complainants drawn on National Bank Ltd, Kawran Bazar Branch, Dhaka. The complainants presented the said cheque for encashment but the Bank returned the same with the remark "insufficient fund". After receipt of the information from the bank the complainants served a legal notice upon the accused persons on 23-3-2015 demanding payment of money mentioned in the cheque within 30 days from the date of receipt of the legal notice but the accused persons in spite of receipt of the notice did not come forward to pay the said amount to the complainants. Hence, the present case under Section 138 of the Negotiable Instruments Act (in short the "Act").
4. The accused opposite party No. 1 appeared in court and obtained bail but the accused No. 2 remained absconded. In usual course the case was fixed on 25-10-2015 for framing charge. Before that date the accused opposite party No. 1 filed an application under Section 265C of the Code of Criminal Procedure seeking discharge from the case on the ground that the legal notice under Section 138 of the Act was served upon the accused No.2 beyond time who did not appear in the case. The trial court allowed the application and discharged the accused. At this stage the complainant petitioners moved this Court by filing this application against the order passed and obtained the present Rule.
5. The opposite party No. I contested the Rule, however, without filing any counter-affidavit.
6. Mr Md Shajahan with Ms. Jesmin Sultana, learned Advocates appearing for the petitioner submit that the accused persons issued the cheque in question not in their personal capacity but for and on behalf of a company named Arcadia Property Development Ltd. as Managing Director and Director respectively, in such a situation independent notice Under Section 138 of the Act need not be required to be served upon each Director of the company and, as such, notice served upon the Managing Director is sufficient for initiation of the case under sections 138 and 140 of the Act. Mr Shahjahan further submits that the trial court rightly found that the notice under Section 138 of the Act was properly served upon the accused No. 1 and the case was filed within the time. But wrongly observed that since a notice under Section 138 of the Act served upon the accused No.2 after 49 days of dishonor of the Cheque the case is barred by law as the cheque in question was issued under joint signature of the accused persons and that the law does not permit to split up the cause of action for a single cheque.
7. Mr Shajahan further goes to argue that in the event of issuance of cheque by the Managing Director or Director on behalf of the company, service of a single notice under Section 138 of the Act upon the company itself or its Managing Director is sufficient for prosecuting the company and its Directors who are responsible for the day to day affairs of the company. Referring to Section 140 of the Act and the cheque in question he further argued that both the accused signed the cheque for payment of the debt of the company and, as such, service of notice upon the Managing Director is sufficient and non-service of notice or notice served beyond time upon other directors of the company is immaterial for prosecution of the company or the Managing Director. Finally, he argued that the trial court discharged the accused persons on the ground of service of notice upon accused No.2 beyond time who is absconding and no application was filed on his behalf on surrender before the court and, as such, discharging the accused vide the impugned order is illegal and hence, liable to be set aside.
8. Mr Md Shahidul Islam, learned Advocate appearing for the opposite party No. 1 submits that the trial court rightly discharged the accused opposite party No. 1 and another from case finding that the case is barred by law as the notice under Section 138 of the Act was served upon the accused No.2, one of the signatories of the cheque beyond time and the cause of action cannot be splitted up. He further argued that it is a condition precedent that to prosecute a drawer of the cheque a notice under Section 138 of the Act must be served upon the drawer within 30 days of the dishonor of the cheque, but in the present case the notice was served after 49 days and, as such, the Rule is liable to be discharged.
9. Heard the learhed Advocates for the parties, have gone through the application, petition of complaint, application under Section 265C of the Code of Criminal Procedure and the impugned order dated 25-10-2015.
10. In the instant case the question is whether by serving only one notice under Section 138 upon the Managing Director, who issued the cheque as one of the signatories for discharge of the debt of the company and service of notice under Section 138 upon other signatory director or directors beyond time, who are responsible for day to day affairs of the company can be prosecuted for the offence under Section 138 of the Act for dishonor of the cheque along with the Managing Director of the company.
11. Before deciding the point raised, it is necessary to have a look at the provisions of Sections 138 and 140 of the Act, which run thus:
"138. Dishonor of cheque for insufficiency, etc. of funds in the account.-(l) where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account 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 this Act, be punished.
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 of its validity, whichever is earlier.
(b) the payee or 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" thirty days of the receipt of information by him from the bank regarding the return of the cheques as unpaid, and
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within thirty days of the receipt of the said notice. "
"140. Offences of companies-(l) If the person committing an offence under Section 138 is a company, every person who, at the time the offence was committed, was incharge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:
Provided that nothing contained in this sub-section shall render any person liable to punishment if he proves that the offence was committed without his knowledge, or that he had exercised all due diligence to prevent the commission of such offence.
(2) Notwithstanding anything contained in sub-section (1), Where any offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly:
12. According to Section 138, where any cheque drawn by a person, on an account maintained by him with the bank is returned by the bank unpaid for reasons mentioned in said section such person shall be deemed to have committed an offence. The proviso to the section stipulates 3 (three) conditions on the satisfaction of which the offence is said to be completed.
The proviso inter alia, obliges the payee to make a demand for the payment of said amount of money by giving a notice in writing to "the drawer of the cheque" and if "the drawer of the cheque" fails to make the payment within 30 (thirty) days of the receipt of said notice the stages stipulated in the proviso fulfilled.
Therefore, notice under Section 138 is required to be served upon "the drawer" of the cheque so as to give the drawer an opportunity to make the payment and escape the penal consequences.
13.    The simple meaning of "drawer" is, the person who writes a cheque or draft instructing the drawer to pay someone else. In the present case, admittedly the cheque in question was drawn by Arcadia Property Development Ltd., a company registered under the law and is a person having legal entity. So, the company is the "drawer" of the cheque. The wordings as used in Section 138 is very clear to make only the "drawer" liable and thus, leaves no room for any doubt or ambiguity.
14.    The intention behind bringing the directors within the claws of the law was simple, that since company is ajuristic person, it would be managed by living persons who guided the act of such a juristic person to commit such a glaring default and hence, should be held responsible.
15. The purport and scope of Section 140 does not lay down any requirement that in the eventuality of an offence under Section 138, the directors must individually be issued separate notices under Section 138. Here, the accused are not the "drawer" of the cheque in question. They merely signed the cheque for and on behalf of the drawer company for payment of the money to the complainant with whose connivance and neglect the company has committed the offence.
The accused No. 2 who runs the business and looks after the affairs of the company along with the accused No. 1 must normally be aware of the notice of demand under Section 138 of the Act issued to the accused No.1, Managing Director of the company.
This is because the Managing Director being the chief executive of the company his knowledge may be deemed to be the knowledge of the company and the directors as well. It is precisely for this reason that no notice is additionally contemplated to be given to the accused No. 2 as one of the directors of the company. Therefore, service of notice upon the accused No.2 beyond time is immaterial where there is nothing in Section 138 which may even remotely suggest issuance of notice to anyone other than "drawer."
16. If it was the contention of the directors arrayed as the accused in a prosecution under the Act, that the offence was committed without their knowledge or that they had exercised due diligence to prevent such commission of offence, it would be a matter of defence to be considered at the stage in the trial and certainly not at this stage. Thus, a single notice of demand issued to the accused No.1, Managing Director of the company will henceforth, be considered to have been issued to the directors as well and the liability of directors can arise on the basis of such notice.
17. Apart from this since the cheque in question had been issued by the company as drawer, it constitutes single cause of action and there cannot be any question of splitting up of the cause of action where the accused No.2 remains absconding and the law does not contemplate separate notice to be given to every director. Moreover, in the instant case the complaint discloses only one notice.
18. In view of the above, we find merit in the Rule and in the submissions of the learned counsel for the petitioners calling interference of this Court.
19. In the result the rule is made absolute.
20. The impugned order dated 25-10-2015 passed by the learned Sessions Judge and Special Judge, Court No.4, Dhaka, in Sessions Trial Case No. 129 of 2015 is hereby set aside.
21. The trial court is hereby directed to proceed with the case in accordance with the law.
Communicate a copy of this judgment to court concerned.

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