JUDGMENT
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 paragraphs 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.
3. 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.: wherein it has been mentioned in para 21 that even if the prosecution proceedings against the company were not taken or caould not be continued, it is no bar to the proceedings against the other persons falling within purview of Sub-section (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.
4. 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 investigated by the trial court and not this court in proceedings under Section 482 Cr.P.C.
5. The fourth point raised by the learned counsel for the applicant was that there was an order of stop payment to the banker, hence the cheque ceases to be a negotiable instrument, hence there was no legal liability on the applicant to make payment on the said cheque. This proposition is in the teeth of the decision of the apex court in Modi Cements Ltd. v. Kuchil Kumar Nandi : (1998) SCC 249 which has held that Section 138 would be attracted even if a cheque is dishonoured because of stop payment instruction to the bank. This decision has overruled the earlier decision of the apex court to the contrary in K.K. Sridharthan v. T.P. Praveena Chandran: , which supported the contention of the applicant’s counsel.
6. Finally, it was argued that the dispute between the parties is of civil nature and criminal proceedings ought to have not been taken against the applicant. As the allegations in the complaint was clearly that the cheque was dishonoured, an offence under the Act was disclosed and nothing turns on the argument of the learned counsel for the applicant that the dispute between the parties was of civil nature.
7. In this view of the matter, there is no force in this application under Section 482 Cr.P.C. and the same is dismissed. Dt: 22.8.2005/sks. AS-42.