Judgment :- 1. The petitioner who is the accused No. 2 in the Case No.C/374/89 under S.138 of the Negotiable Instruments Act, 1881 as amended by the Banking Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act, 1988 now pending before the Ld. Metropolitan Magistrate, 5th Court, Calcutta has moved this Court under S.401 read with S.482 of the Criminal Procedure Code, 1973 for quashing the said proceedings against him on the following allegations. On November 15,1989 the opposite party being the Director (Commercial) of M/s.T.S. Foundry Equipment (Private) Limited having its registered office at 2, Ganesh Chandra Avenue filed a petition of complaint before the Ld. Addl. Chief Metropolitan Magistrate, Calcutta charging the petitioner with an offence under S.138 as Amended by the Banking, Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act, 1988. In the aforesaid complaint it was, inter alia, agreed: "That the accused No.2 Dilip Jaiswal, who is the Director of M/s. Hisco Steel Private Limited, the accused No.1 on behalf of his company placed an order on 5-2-1989 to the complainant's company for supplying various sizes of moulding boxes. Pursuant to the aforesaid order the complainant's company on two different dates supplied total 45 numbers of moulding boxes to the accused No.1 under proper receipt on 12-9-1989 and 13-9-1989 respectively. Thereafter the complainant's company submitted two bills one for Rs. 46,582.50 paise and another for Rs.1,06,665,60 paise when on October 12,1989 the accused No.2 on behalf of his company the accused No.1 issued a cheque in favour of the complainant's company towards the payments of the cost of the said articles. On the same day the accused No.2 as the Managing Director of Hotel Hindustan International by a letter dated 12-10-1989 guaranteed the payment of the dues of the complainant's company amounting to Rs.1,52,648.10 paise and issued a post dated cheque for Rs.1,52,648.10 paise, on consideration that the said cheque be presented for encashment in the event the earlier cheque dated 12-10-1989 was dishonoured for any reason. The complainant presented the cheque dated 12-10-1989 to the Banker for encashment. On October 17,1989 the bank returned the said cheque unpaid with an endorsement "exceeds arrangement". Thereafter the complainant presented the cheque dated 23-10-1989 to Banker for encashment and the said cheque was also returned unpaid with an endorsement "Payment stopped by drawer". The complainant presented the cheque dated 12-10-1989 to the Banker for encashment. On October 17,1989 the bank returned the said cheque unpaid with an endorsement "exceeds arrangement". Thereafter the complainant presented the cheque dated 23-10-1989 to Banker for encashment and the said cheque was also returned unpaid with an endorsement "Payment stopped by drawer". It was further alleged in the mean time the accused company by a letter No.Hisco/Works/MK/89 dated 14-10-1989 written by the Factory Manager of accused No.1 (HISCO) informed the complainant company that those 45 numbers of moulding were rejected and advised the complainant to collect the same within 48 hours from the date of receipt of the letter. The said letter was received by the complainant on 19-10-1989. The complainant's company by a letter No.GEN/H-2/89-90/471 dated 25-10-1989 denied and disputed all the allegations made in the aforesaid letter. The complainant by a letter No. TSP/HISCO/89-90 dated 25-11-89 sent to the factory at 68, Jessore Road, Calcutta-55 as to the Head Office of the accused at 8, Rajendra Deb Road, Calcutta-700 007 under registered post with A/D in writing for the payment of the aforesaid dues at Rs.1,52,648.10 paise being the unpaid price of 445 Nos. of moulding boxes sold to the accused within 15 days from the date of receipt of the said notice and were duly received by the accused. It is further alleged that both the accused despite the receipts of the aforesaid notice of demand dated 25-10-1989 failed and neglected to pay the said sum of Rs. 1,52,648.10 paise to the complainants company within the stipulated time." 2. The learned Additional Chief Metropolitan Magistrate on November 25,1989 took cognizance of the offence and made over the case to the Metropolitan Magistrate, 5th Court, Calcutta for every enquiry and trial under S.192, Criminal Procedure Code. On that date the learned Metropolitan Magistrate, 5th Court, Calcutta examined the complainant on oath and issued summons against the petitioner and M/s. Hisco Steel, (Private) Limited directing to appear in Court under S.138 of the Negotiable Instruments Act, 1881, as amended by the Banking Public Financial Institutions Laws (Amendment) Act, 1988 and face the trial. 3. On that date the learned Metropolitan Magistrate, 5th Court, Calcutta examined the complainant on oath and issued summons against the petitioner and M/s. Hisco Steel, (Private) Limited directing to appear in Court under S.138 of the Negotiable Instruments Act, 1881, as amended by the Banking Public Financial Institutions Laws (Amendment) Act, 1988 and face the trial. 3. The petitioner contends that the impugned prosecution against the petitioner as well as against Hisco Steel Private Limited is wholly misconceived, that as the goods supplied by the company to opposite party being defective and having been rejected there could be no liability on the petitioner's company to pay for the aforesaid substandard articles and consequently the dishonour of the cheque to pay for the said goods does not amount to an offence under S.138 of the Negotiable Instruments Act. It is also submitted that in any event the prosecution of the petitioner under S.138 of the Negotiable Instruments Act is wholly illegal inasmuch as prior to lodging complaint no notice of demand was served upon him. It is, therefore, prayed that the Case No.374/89, be, therefore, quashed. 4. The revision petition is opposed by the opposite party. It is submitted that the goods that were supplied were not of sub-standard quality, that no such complaint within thirty days of the receipt of the goods was ever made, that the impugned cheque was to be effective only after one month of the date of supply of the goods and that admittedly the cheque issued by the M/s.Hisco Steel Private Limited of which the petitioner No.2 being the Director was in charge of the company issued the cheque on behalf of the company was dishonoured by the bank on 16th October, 1989 on the ground "exceeds arrangement" and this fact brings the case of the opposite party within the purview of S.138 of the Negotiable Instruments Act, that notice as contemplated under S.138 of the Act was duly served upon M/s.Hisco Steel Private Limited, that the petitioner being the Director incharge is being prosecuted along with the above company under S.141 of Negotiable Instruments Act and consequently there is no infirmity in the prosecution at the present stage for this Court to interfere and to quash the proceeding. 5. 5. It is revealed from the petition as well as from the copy of the petition of the complaint lodged by the opposite party against the petitioner and Hisco Steel Private Ltd. under S.138 of the Negotiable Instruments Act that the present prosecution on is for dishonour of Cheque No.598816 dated 12th October,1989 for Rs. 1,52,648.10p. On 16th October, 1989 with the endorsement of the bank 'exceeds arrangement', it is also revealed from the record that a notice under registered post as contemplated under S.138 of the Act dated 25th October, 1989 was served upon M/s.Hisco Steel Private Limited demanding the payment of the amount of the cheque so dishonoured as within 15 days from the date of the service of the notice. As no payment was made the present prosecution has been launched. Inorder to appreciate the contention raised by the parties, it is necessary to reproduce S.138 of the Negotiable Instruments Act. It states as follows: "138. Dishonour of cheque for insufficiency etc, of funds in the account. As no payment was made the present prosecution has been launched. Inorder to appreciate the contention raised by the parties, it is necessary to reproduce S.138 of the Negotiable Instruments Act. It states as follows: "138. Dishonour of cheque for insufficiency etc, of funds in the account. 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 for the discharge in the whole or in part of any debtor other liability, 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 the bank, such person shall be deemed to have committed an offence and shall without prejudice to any other provision of this Act, be punished with imprisonment for a term which may extend to one year or with imprisonment for a term which may extend to one year or with fine which may extend to twice the amount of the cheque, or with both 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 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; 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 fifteen days of the receipt of the said notice." Explanation. For the purpose of this section "debt or other liability" means a legally enforceable debt or other liability." 6. For the purpose of this section "debt or other liability" means a legally enforceable debt or other liability." 6. At this present stage on perusing the documents produced we are primafacie satisfied that the cheque in question was dishonoured for insufficiency of the funds in the account concerned of the Limited Company. On behalf of the petitioner Mr.Balai Chandra Roy has urged that the letters annexed to the petition would indicate that the liability for payment was not there as the goods were rejected and the opposite party was directed to take back the goods. 7. On behalf of the opposite party it is submitted that the same was done subsequent to the dishonour of the cheque and as a fraudulent motive to avoid prosecution under the Act, that the goods were not rejected within the period of one month of the date of supply and, therefore, at the present moment it cannot be said prima facie that the company which is being prosecuted did not have the liability for which the cheque was issued and dishonoured. On considering the submissions made by the learned Advocates for both the parties we are of the view that at the present moment and without proper evidence not having been taken by the learned trial judge, it cannot be held at this stage that the accused company did not have the liability for which the cheque was issued and admittedly dishonoured for insufficiency of funds in the Accounts of the Company. Therefore, the opposite party produced prima facie materials for the court to issue process. The first contention of the petitioner thus fails. The second contention of the petitioner is that the present petitioner was not served with a notice as contemplated under proviso (b) of S.138 of the Negotiable Instruments Act as amended. The proviso (b) to S.138 of the Negotiable Instruments Act stated that nothing in S.138 shall apply unless 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 the information by him from the bank regarding that return of the cheque as unpaid. It is contended on behalf of the petitioner that even though a notice was issued upon the Hisco Steel Private Limited but no such notice was served upon the present petitioner and consequently the prosecution against the present petitioner under S.138 of the Negotiable Instruments Act is not maintainable and the proceeding so far as the petitioner is concerned is liable to be quashed. 8. On behalf of the opposite party it is submitted that the offence under S.138 under, the Negotiable Instruments Act was committed by the Limited Company and, therefore, the limited company was served with the notice as contemplated in proviso (b) of S.138 of the Act that the petitioner being the Director-in¬charge of the said company is being prosecuted along with the company in view of S.141 of the Negotiable Insturments Act and that for such a person who is being prosecuted under S.141 of the Act along with the limited company who is alleged to have committed the offence no separate notice is required to be given and, therefore, even if such a notice was not given to the petitioner he can be prosecuted under S.138 read with S.141 of the Negotiable Instruments Act. 9. On a clear perusal of clause (b) of S.138 we are of the view that before instituting the criminal proceeding under S.138 of the Negotiable Instruments Act the payee or the holder in due course of the cheque, as the case may be, has to make a demand for the payment of said amount of money by giving a notice in writing to the drawer of the cheque. Mr.Balai Roy submits that in this particular case the petitioner having signed the cheque was drawer of the cheque. Therefore, a notice under proviso (b) was required to be given upon him. 10. The expression "drawer of the cheque" has been defined in S.7 of the Negotiable Instruments Act as follows: "The maker of a Bill of Exchange or cheque is called the drawer" 11. Now, the question to be decided is who is the maker of the cheque in this particular case. The liability to make the payment to the present opposite party was that of Hisco Steel Pvt. Ltd. The cheque that was signed by the petitioner was issued by him for Hisco Steel Pvt. Ltd. as Director. Now, the question to be decided is who is the maker of the cheque in this particular case. The liability to make the payment to the present opposite party was that of Hisco Steel Pvt. Ltd. The cheque that was signed by the petitioner was issued by him for Hisco Steel Pvt. Ltd. as Director. Therefore the liability to make the payment being that of the limited company it was the limited company who was the drawer of the cheque and not the petitioner who is one of its Directors. The petitioner was at the time of the issuing of the cheque acting for and on behalf of the limited company. Therefore, it was a cheque issued by the limited company and as a limited company has to act through its instrumentality such as a Director or a Secretary or any other Financial Officer the petitioner as Director signed the cheque. But that would not make him the maker of the cheque and the Limited Company in question must be held to be the maker of the cheque. The opposite party seeks to prosecute the present petitioner along with the company under S.141 of the Act which reads as follows: Offences by Companies. 141. (1) If the person committing an offence under S.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 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 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. Explanation.- For the purposes of this Section. 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. Explanation.- For the purposes of this Section. (a) "Company" means any body corporate and includes a firm or other association of individuals; and (b) "director" in relation to a firm means a partner in the firm. 12. We are of the view that the contention of the opposite party is correct. In the petition of complaint the present petitioner being the director is being prosecuted under S.141 of the Act along with the company. Therefore, we are unable to accept the submission of Mr.Roy that a separate notice upon the petitioner director is required to be given under proviso (b) to S.138 of the Negotiable Instruments Act for prosecuting him alongwith the company for the offence alleged to be committed by the company under S.138 of the Negotiable Instruments Act. In the result we are unable to hold that there is any ground for this Court to quash the proceedings even against the present petitioner. In the result the Revision Petition fails. L.C. record be sent down immediately. Manabendra Nath Roy, J. I agree. Dismissed.