JUDGMENT
Onkareshwar Bhatt, J.
1. By means of this petition under Section 482 of the Code of Criminal Procedure prayer has been made to set aside the order dated 11.8.1987 passed by the Judicial Magistrate, Rampur whereby the seven petitioners and Omni Medicare Limited, K.L. Goyal and D.K. Agarwal have been summoned under Section 138 of the Negotiable Instruments Act and Section 120B of the Indian Penal Code. The said order has been confirmed in revision also by order dated 25.8.1998. Prayer has also been made for quashing the order passed in revision.
2. Mr. Rajeev Gupta, learned Counsel appearing for the petitioners and Mr. Ram Mohan, holding brief of Mr. Neeraj Pandey for Opposite Party No. 2 and the learned A.G.A. have been heard.
3. Opposite party No. 2 has filed the complaint alleging that it is a Limited Company incorporated under the Companies Act. According to the complaint case Omni Medicare Limited is also a Company and K.L Goyal and D.K. Agarwal and the seven petitioners are the Directors of the Company K.L. Goyal and D.K. Agarwal, the non-petitioners, took loan of Rs. 27,00,000/- from the complainant Company in or around August, 1996. It is alleged that the amount of loan was repayable. Non-petitioner D.K. Agarwal issued a post-dated cheque of Rs. 29,62,500/- on 2.3.1997 in favour of the complainant Company. The cheque was returned as dishonoured when it was presented on 5.3.1997.
4. On the request of the accused Company the cheque was again presented at Punjab National Bank, Rampur for encashment. Again the cheque was dishonoured on 12.5.1997.
5. The Bank informed the complainant vide memo dated 29.5.1997, thereafter the complainant Company gave notice on 10.6.1997 to the petitioners and non-petitioners. Even after giving of the notice the payment of the amount of cheque to the complainant Company has not been made. It is further alleged that the petitioner and non-petitioners have conspired and induced the complainant Company to part with a sum of Rs. 27,00,000/-, on the basis of false and forged documents. After giving of the notice complaint has been filed on 23.7.1997.
6. The first contention of the petitioner is that accused Company Omni Medicare Limited could not run its actual business and transferred the control of the Company in favour of
D.K. Agarwal, non-petitioner and subsequently petitioner Nos. 1, 2, 3 and 4 resigned from the Company’s directorship and, as such, the impugned order summoning them is bad because they had no connection with the accused Company. These facts are stated in the counter affidavit but they have been denied in the rejoinder affidavit. It has been stated in the rejoinder
affidavit that all the petitioners are directors of accused company, Omni Medicare Limited, and they along with other directors managed and looked after the business and day-to-day affairs of the accused company. It is further stated that these allegations find place in the complaint itself. According to Sub-clause (1) of Section 141 of ‘The Negotiable Instruments Act’, for short the Act, if the person committing an offence under Section 138 is a company, every person who, at the time the offence was committed, was in charge 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 the punished accordingly. The proviso to the above section provides defence to the person 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. The above questions are questions of fact which can be decided during trial of the case. The Court taking cognizance of the complaint under Section 138 of the Act is required to be satisfied as to whether prima facie case is made out under the said provision. The allegation made in the complaint is that the petitioners are responsible for the conduct of the business of the company. It will be open to the petitioner to satisfy and prove contrary during the trial.
7. The second contention of the petitioner is that the cause of action arose on 5.3.1997 when the cheque was first dishonoured and the complaint is barred by limitation because limitation will not run from the date of subsequent dishonour of the cheque.
8. Admitted fact is that the cheque issued by O.K. Agarwal in favour of the opposite party No. 2 and on 5.3.1997 it was dishonoured. The cheque was against dishonoured on 12.5.1997. Notice was sent on 10.6.1997 whereafter complaint was filed on 23.7.1997. At law a cheque can be presented for payment repeatedly any number of times within six months from the date of drawing of the cheque or within the period of its validity, whichever expires earlier. When the cheque was dishonoured for the second time no provisions of Chapter XVII of the Act precludes the holder of it from filing a complaint on the basis of fresh cause of action which accrues to him thereby for second time. There is no specific provision in Sections 138 to 142 of the Act that complaint or the prosecution has to be launched on the dishonour of the cheque for the first time after the issuance of statutory notice. It has been held in the case of Smt. Kamal Sharma and Anr. v. State of U.P, and Ors., reported in 1995 Judicial Interpretation on Crimes page 329 that the drawee of the cheque is entitled to present the cheque as many times as possible within the prescribed period and if presented and dishonoured on each occasion the drawee is entitled to issue notice to launch prosecution under Section 138 of Negotiable Instruments Act within 15 days from the date of last presentation. It is alleged in the complaint that vide memo dated 29.5.1997 they received information about dishonour of the cheque on 12.5.1997. The notice was given on 10.6.1997 which is within 15 days to the petitioners and the notice is in accordance with Section 138 proviso (b) of the Act. According to the allegation of the complaint the petitioners failed to pay the amount within 15 days. It is stated in the complaint that notice was duly served. It is contended that date of service of the notice is not mentioned in the complaint. In the case of Premier Vinyl Flooring Ltd. and Ors. v. State of U.P. and Anr., reported in 1999(38) ACC page 335 reliance was placed on the observations made in the case of
V.D. Agarwal and Ors. v. Ist Addl. Munsif Magistrate, Lucknow and Ors., Writ Petition No. 138 (M/S) of 1993 decided by the Lucknow Bench of this Court that it is for the petitioner to show that he did not receive any notice and it is for the petitioner to prove at the time of trial that the notice was not served on him at all or that 15 days time did not expire on the date on which the complaint was filed. These questions of fact are to be decided by Court of competent jurisdiction and as such giving any finding at this stage on that point one way or the other may prejudice either party in the course of trial.
9. Admittedly the cheque was issued for discharge of liability of loan taken by the petitioner and non-petitioner. These will be a presumption that holder of cheque, i e, opposite party No. 2, received it for discharge in whole or in part of any debt or other liability under Section 139 of the Act. It has been held in the case of Modi Cements Ltd. v. Kuchil Kumar Nandi, reported in III (1998) SLT 126=1 (1999) CCR 44 (SC)=I (1998) BC 421 (SC)=1998 ACC page 593 (Supreme Court) that:
“It is needless to emphasise that the Court taking cognizance of the complaint under Section 138 of the Act is required to be satisfied as to whether a prima facie case is made out under the said provision. The drawer of the cheque undoubtedly gets an opportunity under Section 139 of the Act to rebut the presumption at the trial.”
10. In view of the aforesaid discussion, summoning order passed by the learned Magistrate which has been confirmed in revision also calls for no interference. The petition is accordingly dismissed. Interim order dated 22.9.1998 is vacated.