ORDER : The petitioners herein have been arrayed as accused No.1 and accused No.2 for the offence punishable under Section 138 of the Negotiable Instruments Act in Calendar Case No.4509 of 2010 on the file of the Judicial First Class Magistrate Court-VI, Ernakulam, instituted on the basis of a complaint filed by the second respondent herein. Exhibit-P1 dishonoured cheque dated 5.2.2008 is for Rs.94,000/-. 2. Initially the complaint dated 6.10.2008 was filed by the second respondent herein on 13.10.2008 wherein the sole accused therein is the first revision petitioner herein, who is stated to be the Managing Director of a Chit Company. Later, the complainant had filed application dated 26.2.2014 in purported invocation of the provisions contained in Section 319 of the Cr.P.C. seeking to array the second revision petitioner herein/Chit Company concerned as additional respondent No.2 in the complaint and the said application was allowed by the trial court on 8.1.2014. Summons was thus issued and served and thereupon cognizance was also taken as against the second additional accused Company. The said additional accused No.2 is the Chit Company and the first revision petitioner is stated to be the Managing Director of the said chit Company. It is not in dispute that the statutory demand notice as contemplated under Section 138 proviso (b) was issued to the Managing Director of the said Chit Company and it is not in dispute that such statutory demand notice was not sent to the second accused Company. An objection was raised by the second revision petitioner/additional accused No.2 Company that since statutory demand notice under Section 138 proviso (b) was never served on the said Company, complaint is not maintainable and even as per the case projected by the complainant in evidence, the drawer of the cheque is the Company inasmuch as the dishonoured cheque has been issued from the account maintained by the Company and not from the individual account of the first revision petitioner. Accordingly, it is contended that since no statutory demand notice was actually served prior to the institution of the complaint on the drawer of the cheque, the complaint itself is not maintainable. Both the courts below have overruled the said contention of the revision petitioners. Accordingly, it is contended that since no statutory demand notice was actually served prior to the institution of the complaint on the drawer of the cheque, the complaint itself is not maintainable. Both the courts below have overruled the said contention of the revision petitioners. Based on the available evidence, the trial court has found that the offence under Section 138 of the Negotiable Instruments Act has been committed by additional accused No.2 Company and that the original accused, who was the Managing Director of the Company at the relevant time, is vicariously liable. In that view of the matter, the trial court has convicted both the accused for the abovesaid offence and were sentenced to pay a fine of Rs.1,00,000/- and in default of payment of fine, the accused were sentenced to undergo simple imprisonment for a period of six months and that the fine amount realised was directed to be paid as compensation to the complainant under Section 357(1)(b) of the Cr.P.C. Thereupon the accused persons had filed Criminal Appeal No.456 of 2014 before the Appellate Sessions Judge, Ernakulam, to impugn the abovesaid trial court judgment of conviction and sentence dated 24.9.2014 in C.C.No.4509 of 2010. The appellate Sessions Court, as per the impugned judgment dated 3.6.2015, has dismissed Criminal Appeal No.456 of 2014 and has held that the complaint is maintainable and further that both the accused are liable to be convicted and have also confirmed the sentence of fine and default sentence. It is these judgments of conviction and sentence imposed concurrently by both the courts below are under challenge in this revision petition. 3. Heard Sri.T.N.Hareendran, learned counsel appearing for the revision petitioners/accused Nos.1 and 2, Sri.C.A.Majeed, learned counsel appearing for R2/complainant and Sri.Saigi Jacob Palatty, learned prosecutor appearing for R1/State. 4. It is these judgments of conviction and sentence imposed concurrently by both the courts below are under challenge in this revision petition. 3. Heard Sri.T.N.Hareendran, learned counsel appearing for the revision petitioners/accused Nos.1 and 2, Sri.C.A.Majeed, learned counsel appearing for R2/complainant and Sri.Saigi Jacob Palatty, learned prosecutor appearing for R1/State. 4. Sri.T.N.Hareendran, learned counsel appearing for the revision petitioners, have urged strongly that the complaint itself is not maintainable and that the matter in issue is only covered in favour of the revision petitioners and against the complainant by virtue of the ratio recently laid down by the Apex Court in the case in Harihara Krishnan.N. v. J.Thomas, reported in 2017 (10) SCALE 417 = 2017 (4) KHC 699 (SC) = 2017 (2) KLD 577 as well as by the judgment of this Court in the case in Balachandran v. State of Kerala reported in 2017 (3) KLT 1081 = 2017 (3) KLJ 906 = 2017 (5) KHC SN 3. 5. In the said judgment of this Court in Balachandran v. State of Kerala reported in 2017 (3) KLT 1081 , this Court after placing reliance on some of the judgments of the Apex Court on the subject has held that Section 141 of the Negotiable Instruments Act (on the basis of vicarious liability of directors of an accused drawer Company) does not lay down any requirement that in such eventuality that the individual directors of the drawer Company must individually be issued separate notices under Section 138 proviso (b) of the Negotiable Instruments Act and that the individuals, who are in charge of the affairs of the Company and running its affairs must naturally be aware the notice of demand under Section 138 of the Act issued to such Company and that a notice should be mandatorily issued to the Company who is the drawer of the cheque. As the principal offender is the drawer Company concerned, no notice is additionally contemplated to be given to such directors and the opportunity to the “drawer” by issuing statutory demand notice under Section 138 proviso (b) is considered sufficient for those who are in charge of the affairs of such Company and if it is their case that the offence was committed without their knowledge or that they had exercised due diligence to prevent such commission, it would be a matter of defence to be considered at the appropriate stage. This legal position was so held on the basis of the judgment of the Apex Court in the case in Kirshna Texport & Capital Markets Ltd. v. Ila A. Agrawal, reported in (2015) 8 SCC 28 and thus it was so held that fulfillment of the requirements of serving statutory demand notice to the Company prior to the institution of the complaint under Section 138 proviso (b) would be mandatory and without such notice, there is no question of maintaining any complaint irrespective as to whether the drawer of the cheque is a Company or individual and that where the dishonoured cheque is drawn from the account of a Company/partnership firm/corporate body, then the drawer of the cheque is such Company/partnership firm, etc. and the offence is committed by the drawer of the cheque/principal offender and that Section 138 proviso (b) notice should be mandatorily to be served to the drawer Company and that there is no necessity to serve notices on the directors/partners of a Company/partnership firm who were in charge of and responsible for the affairs of the Company at the time of commission of the offence. So it was held that where the statutory demand notice is not duly served on the drawer Company for whose account the dishonoured cheque has been issued, then no valid complaint could be instituted as against such a drawer Company and if no offence is so made out against the principal offender drawer Company, then the question of convicting the individual directors and officers of the Company on the basis of vicarious liability under Section 141 of the Negotiable Instruments Act does not arise. It will be profitable to refer to paragraphs 8 and 9 of the said judgment of this Court in Balachandran v. State of Kerala reported in 2017 (3) KLT 1081 , p.p. 1087 to 1089, paragraphs 8 and 9, which read as follows : “8. It will be profitable to refer to paragraphs 8 and 9 of the said judgment of this Court in Balachandran v. State of Kerala reported in 2017 (3) KLT 1081 , p.p. 1087 to 1089, paragraphs 8 and 9, which read as follows : “8. It is relevant to note that it has been held by the Apex Court in the case Kirshna Texport & Capital Markets Ltd. v. Ila A.Agrawal, reported in 2015 (2) KLT 543 (SC) = (2015) 8 SCC 28 , that S.141 of the N.I. Act states that if the person committing an offence under S.138 is a company, every Director of such company, who was in charge of and responsible to that company for conduct of its business shall also be deemed to be guilty and that the reason for creating vicarious liability is plainly that a juristic entity i.e., a company would be run by living persons, who are in charge of its affairs and who guide the actions of the company and that if such juristic entity is guilty, those who were so responsible for its affairs and who guided the actions of such juristic entity must be held responsible and ought to be proceeded against. That S.141 again does not lay down any requirement that in such eventuality, the individual directors must individually be issued separate notices under S.138 and that the persons, who are in charge of the affairs of the company and running its affairs must naturally be aware of the notice of demand under S.138 of the Act issued to such company and that it is precisely for this reason that no notice is additionally contemplated to be given to such directors. That the opportunity to the “drawer” by issuing statutory demand notice is considered good enough for those who are in charge of the affairs of such company, etc., and if it is their case that the offence was committed without their knowledge or that they had exercised due diligence to prevent such commission, it would be a matter of defence to be considered at the appropriate stage, etc. Therefore, it is crystal clear that in a case, where the drawer of the dishonoured cheque is a company, then statutory demand notice should mandatorily be served on the drawer company but that separate individual notices to the individual directors and officials of the company is not mandatory. Therefore, it is crystal clear that in a case, where the drawer of the dishonoured cheque is a company, then statutory demand notice should mandatorily be served on the drawer company but that separate individual notices to the individual directors and officials of the company is not mandatory. Therefore, going by the legal principles laid down by the Apex Court in Aneeta Hada v. Godfather Travels & Tours Pvt. Ltd. reported in 2012 (2) KLT 736 (SC) = (2012) 5 SCC 661 , and in Kirshna Texport & Capital Markets Ltd.'s case supra, it is crystal clear that where the drawer of the dishonoured cheque in a case being a company, then the prosecution for offence under S.138 of the N.I. Act is not maintainable without arraying the principal offender (drawer of the cheque) as an accused in such complaint. Further that even if the principal offender company is arrayed as a accused in such complaint, the same would be maintainable only if all the other conditions for the valid institution of a complaint as envisaged in S.138 and its proviso are fulfilled. In other words, the fulfillment of the requirements of serving statutory demand notice to the company prior to the institution of the complaint in the manner prescribed in S.138 proviso, would be mandatory and without such notice, there is no question of maintaining any complaint as against an accused irrespective as to whether the drawer of the cheque is a company or a individual. This Court in the final order dated 26.11.2012 in Crl.R.P.No.1704/2012 and connected cases had ordered that another opportunity should be given to the complainant to continue the prosecution after arraying the company also as an accused and accordingly, remanded the matter to the Trial Court for fresh disposal of the case, with a further direction that if the petitioner files application for arraying the company also as an accused, the learned Magistrate shall consider and pass orders on the same in accordance with law and continue the prosecution. One of the arguments raised by the learned counsel for the complainant is that the said order of this Court has not been challenged by the company before the Apex Court and that the said directions have become final and conclusive and are binding all the parties thereto, as well as on the fora like the Trial Court, Appellate Court, revisional court, etc. who are concerned with such prosecution, which was ordered to continue by this Court. It is also not in dispute that the company was not a party to the said proceedings. Irrespective as to whether the company was a party to that proceedings or not, nothing in that order would legally preclude the company from contending that the prosecution is not maintainable on account of the non-service of the prior statutory demand notice. The order dated 26.11.2012 of this Court in the earlier round of Criminal Revision Petitions cannot be construed as if this Court has given licence to the complainant to lawfully maintain the prosecution even without the prior statutory demand notice. If the said contention of the appellant is conceded, then it would amount to rewriting the provisions of S.138 of the N.I.Act. Certainly this Court had ordered the continuance of the prosecution after arraying the company as an accused. But the issue as to whether such prosecution could be lawfully maintained even in the absence of the prior statutory demand notice, was never raised or decided by this Court in those revision petitions. If the accused company could successfully point out that the statutory demand notice was never served on the drawer of the dishonoured cheque, then certainly the Trial Court, Appellate Court and revisional court, etc., are bound to apply their judicial mind and decide that issue. For deciding that issue, it is common ground that P.W-1 has clearly admitted in his evidence that prior statutory demand notice has never been served on the drawer company. Therefore, the Appellate Court cannot be found fault with in any manner in rendering the impugned view. Since the prosecution is not maintainable as against the drawer company in view of this ground, then the prosecution against the individual director would also crumble to the ground as the offence under S.138 of the N.I. Act is essentially and primarily attracted as against the drawer of the cheque. If no offence is made out against the accused drawer company, then the question of convicting the individual Directors and officials of that company on the basis of vicarious liability under S.141 of the N.I. Act does not arise. For these reasons, the Lower Appellate Court was fully right in holding that all the accused are entitled for acquittal. 9. If no offence is made out against the accused drawer company, then the question of convicting the individual Directors and officials of that company on the basis of vicarious liability under S.141 of the N.I. Act does not arise. For these reasons, the Lower Appellate Court was fully right in holding that all the accused are entitled for acquittal. 9. There is yet another important aspect of the matter, which has not gained the attention of the Lower Appellate Court. A mere reading of the statutory demand notice and the complaints would reveal that there are no averments either in the notices or in the complaints that the drawer of the dishonoured cheques in question is the chit company. On the other hand, the specific averment in the notice as well as in the complaint is that the dishonoured cheque in question has been issued by the individual director (Sri. Radhakrishnan Parappurath) and that even the liability is one which is owed by the said individual to the complainant. The notice is issued solely to the said individual (R-2 herein) and the sole accused in the complaint (prior to the subsequent arraying of the company as an additional accused in the original complaint) is that individual. So even after arraying the company as an additional accused, said averments have not been in any manner altered or amended. Therefore, without the basic averment in the complaint that the drawer of the dishonoured cheques in question is the company and not the individual director, it is not right and proper to convict the accused company for the above said offence. That apart, in the facts and circumstances of a case like this, even if an application for amendment of averments in the complaint had been filed, it could not have been allowed as it could have caused serious prejudice to the accused company. Going by the legal principles laid down by this Court in the decisions of this Court as in Linda John Abraham v. Business India Group Company & ors. reported in 2011 (4) KLT 787 = 2011 (4) KHC 587 , Hafsa Rahman P. v. State of Kerala & Ors., reported in 2017 (3) KLT SN 48 (C.No.64) = 2017 (3) KHC 49 , as well as the rulings of the Apex Court as in U.P. Pollution Control Board v. M/s.Modi Distillery & Ors. reported in 2011 (4) KLT 787 = 2011 (4) KHC 587 , Hafsa Rahman P. v. State of Kerala & Ors., reported in 2017 (3) KLT SN 48 (C.No.64) = 2017 (3) KHC 49 , as well as the rulings of the Apex Court as in U.P. Pollution Control Board v. M/s.Modi Distillery & Ors. reported in (1987) 3 SCC 684 , S.R.Sukumar v. S.Sunaad Raghuram reported in 2015 (3) KLT 382 (SC) = (2015) 9 SCC 609 , etc., such a plea for amendment of the averments in the complaint could not have been entertained at all in the facts of this case. This is all the more so, inasmuch as in the facts of this case, any plea for such amendment was not brought forth before the issuance of summons to the accused company. For all these reasons, this Court is constrained to uphold the view taken by the appellate sessions court that the accused persons are entitled for acquittal. In view of these aspects, the aforecaptioned Criminal Appeals will stand dismissed.” 6. Further the Apex Court in the decision in Harihara Krishnan.N. v. J.Thomas reported in 2017(4) KHC 699 (SC) dealt with a similar case where the drawer of the dishonoured cheque was a Company M/s.Dakshin Granites Pvt. Ltd. and the signatory of the dishonoured cheque was one of the directors, Sri.Harihara Krishnan. The judgment of the trial court ended in conviction. The complainant had initially arrayed only the individual director Sri.Harihara Krishnan as the sole accused in the complaint. After three long years, the complainant had filed an application purportedly invoking the provisions contained in Section 319 of Cr.P.C., so as to array the drawer Company as additional accused No.2 and the learned Magistrate had allowed the said application and had issued summons to the additional accused drawer Company (M/s.Dakshin). The abovesaid order of the trial court was challenged by the individual director of the drawer Company and the matter was taken up in Criminal Revision before the High Court of Madras. The High Court refused to interfere in the revision and had confirmed the impugned decision of the trial court and has held that the drawer Company had not preferred any revision before the High Court as against the impugned decision of the trial court. The High Court refused to interfere in the revision and had confirmed the impugned decision of the trial court and has held that the drawer Company had not preferred any revision before the High Court as against the impugned decision of the trial court. The said adverse decision taken against the drawer Company on the said application under Section 319 of the Cr.P.C. was impugned before the Apex Court. It was contended before the Apex Court that the order of the trial court arraying the drawer Company as an accused much after the institution of the complaint and the cognizance of the case taken as against the original accused, is illegal and ultravires. It was also contended that in the impugned order of the trial court as well as the revisional order, it was held that there is no necessity to condone the delay in the arraying of the additional accused drawer Company concerned inasmuch as the original complaint has been filed within the one month's time limit stipulated in Section 142 of the Negotiable Instruments Act with the original sole accused therein/individual Director concerned and therefore, no separate application is required for any further delay condonation after cognizance of the offence has taken in the original complaint. The Apex Court held in paragraph 20 of Harihara Krishnan’s case (supra) that the offence under Section 138 of the Negotiable Instruments Act is capable of being committed only by the drawer of the cheque and that the logic in the impugned judgment of the High Court therein that since the offence has already been taken cognizance of, there is no need to take cognizance of the offence against the drawer Company is flawed. That Section 141 stipulates liability for the offence punishable under Section 138 when the person committing such an offence happens to be a Company as adumbrated in the provisions contained in Section 141. Section 141 (1) of the N.I.Act provides that 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 him and punished accordingly. The Apex Court held in paragraph 21 of the said decision that the impugned judgment of the High Court therein has erred in holding that the revision filed by the individual director is not maintainable because the drawer Company had not chosen to challenge the order of the trial court. It was further held that the High Court had failed to appreciate that the liability of the individual director is only statutory because of his legal status as the director of the drawer Company and that if the drawer Company is sought to be summoned for being tried for an offence under Section 138 of the N.I.Act beyond the period of limitation prescribed under the Act, the individual director cannot be told in view of the law declared by this Court in Aneeta Hada v. Godfather Travels & Tours Pvt. Ltd. reported in (2012) 5 SCC 661 that the individual director can make no grievance of that aspect on the ground that the drawer Company had not challenged such issuance of summons to that party. It was further held therein that it is always open to the drawer Company in such cases to raise the defence that the initiation of prosecution against him is barred by limitation and that the drawer Company need not challenge the summoning order and it can raise such a defence in the course of the trial. Very crucially it was further held therein by the Apex Court that the impugned view of the High Court therein that only the offence is taken cognizance of and there is no need to take cognizance of an offence vis-a-vis accused-wise is an erroneous view in the context of a prosecution under the Negotiable Instruments Act. After differentiating between the methodology of taking cognizance in cases other than one involving Section 138 of the Negotiable Instruments Act and in the case of special statutory offence like Section 138 of the Negotiable Instruments Act, the Apex Court has clearly held in paragraphs 22 and 23 thereof that the scheme of prosecution in punishing under Section 138 of the Negotiable Instruments Act is different from the scheme prosecuting other offences as per the Cr.P.C. That Section 138 creates an offence and prescribes punishment and no procedure for investigation of the offence is contemplated and the prosecution initiated on the basis of a written complaint made by the payee of a cheque. It was further held that one of the crucial ingredients to be proved for obtaining successful prosecution is that in spite of the statutory demand notice under Section 138 proviso (b), the drawer of the cheque had failed to make payment within 15 days from the date of receipt of the demand. That such a crucial fact regarding the service of demand notice and non-payment of the money by the drawer, could be asserted by the complainant and the burden would be essentially on the drawer of the cheque to prove that he had infact made the payment pursuant to the demand, if the prosecution is to be avoided and that failure to comply with any one of the steps contemplated under Section 138 of the Negotiable Instruments Act would not provide “cause of action for prosecution”. Therefore, it was held that in the context of a prosecution under Section 138, the concept of taking cognizance of the offence, but not the offender is not appropriate. That the complainant should contain all necessary and factual allegations constituting each of the ingredients of the offence under Section 138 and without that the court cannot take cognizance of the offence. Disclosure of the name of the person drawing the cheque is one of the factual allegations which a complaint is required to contain. Otherwise in the absence of any authority of law to investigate the offence under Section 138, there would be no person against whom a court can proceed. There cannot be a prosecution without an accused and that the offence under Section 138 of the Negotiable Instruments Act is person specific. Therefore, it was held that the Parliament has declared an unequivocal terms under Section 142 of the N.I.Act that the provisions dealing taking cognizance as contained in Cr.P.C. should give way to the special procedure prescribed under Section 142 of the N.I.Act. That the opening of the non-obstante clause under Section 142 would make it clear that Section 142 does not either contemplate a report to the police or authorise a court taking cognizance to direct the police to investigate the complaint. That the opening of the non-obstante clause under Section 142 would make it clear that Section 142 does not either contemplate a report to the police or authorise a court taking cognizance to direct the police to investigate the complaint. Accordingly, it was held by the Apex Court in paragraph-25 thereof that the question whether the complainant had sufficient cause for not filling the complaint against the drawer Company within the period prescribed under the Act has not been examined by either of the courts below and that the application which is the subject matter of the instant appeal purportedly filed invoking Section 319 of the Cr.P.C., is only a device by which the complainant seeks to initiate prosecution against the drawer Company (Dakshin) as additional accused beyond the period of limitation stipulated under the Act. It has also been noted by the Apex Court that in the facts of that case, the complainant had issued statutory demand notice under Section 138 proviso (b) to the drawer Company (Dakshin). In spite of service of notice on the drawer Company, the Apex Court has categorically and unambiguously held that the prosecution as against the drawer Company therein is not maintainable inasmuch as the procedure adopted by the trial court in allowing an application under Section 319 of the Cr.P.C. so as to subsequently arraying the drawer Company as additional accused and that too without condoning the delay in taking cognizance as against the additional accused Company, is ultravires and illegal. It will be appropriate in this regard to refer to paragraphs 22 to 27 of the aforecited judgment in Harihara Krishnan's case (supra) read as follows : “22. The CrPC is an enactment which is designed to regulate the procedures governing the investigation of crimes in order to get the perpetrators of the crime punished. A crime is an act or omission prohibited by law attracting certain legal consequences like imprisonment, fine etc. Obviously, acts or omissions constituting offences / crimes are capable of being committed only by persons either natural or juridical. The CrPC imposes a duty on the investigating agencies to gather evidence necessary to establish the occurrence of a crime and to trace out the perpetrators of the crime in order to get them punished. Punishment can be inflicted only by a competent Court but not by the investigating agency. The CrPC imposes a duty on the investigating agencies to gather evidence necessary to establish the occurrence of a crime and to trace out the perpetrators of the crime in order to get them punished. Punishment can be inflicted only by a competent Court but not by the investigating agency. Courts are authorised to inflict punishment if only they are satisfied that the evidence gathered by the investigating agency is sufficient to establish that (1) a crime had been committed; and (2) the persons charged with the offence (accused) and brought before the Court by the investigating agency for trial are the perpetrators of the crime. Under the Scheme of the CrPC, any investigating agency (normally the police) is bound to investigate by following the procedure prescribed therein once it receives either information regarding the commission of a cognizable offence or an order from a Magistrate to investigate into the allegation of the occurrence of a non-cognizable offence and submit a report under S.173. S.173(2) (i) (d) inter alia stipulates that the report should contain a statement: "Whether any offence appears to have been committed and if so by whom?" The conclusions reached by the police after investigation into the above two questions are required to be scrutinized by a competent Court. It is only after the Court is satisfied that the evidence collected by the investigating agency is sufficient in law to punish the accused, such accused can be punished. Taking cognizance of an offence by the Court is one of the initial steps in the process. Thereafter, the investigating agency is required to collect evidence (investigate) and place the same before the Court under S.173 CrPC. 23. The scheme of the prosecution in punishing under S.138 of THE ACT is different from the scheme of the CrPC. S.138 creates an offence and prescribes punishment. No procedure for the investigation of the offence is contemplated. The prosecution is initiated on the basis of a written complaint made by the payee of a cheque. Obviously such complaints must contain the factual allegations constituting each of the ingredients of the offence under S.138. S.138 creates an offence and prescribes punishment. No procedure for the investigation of the offence is contemplated. The prosecution is initiated on the basis of a written complaint made by the payee of a cheque. Obviously such complaints must contain the factual allegations constituting each of the ingredients of the offence under S.138. Those ingredients are: (1) that a person drew a cheque on an account maintained by him with the banker; (2) that such a cheque when presented to the bank is returned by the bank unpaid; (3) that such a cheque was presented to the bank within a period of six months from the date it was drawn or within the period of its validity whichever is earlier; (4) that the payee demanded in writing from the drawer of the cheque the payment of the amount of money due under the cheque to payee; and (5) such a notice of payment is made within a period of 30 days from the date of the receipt of the information by the payee from the bank regarding the return of the cheque as unpaid. It is obvious from the scheme of S.138 that each one of the ingredients flows from a document which evidences the existence of such an ingredient. The only other ingredient which is required to be proved to establish the commission of an offence under S.138 is that inspite of the demand notice referred to above, the drawer of the cheque failed to make the payment within a period of 15 days from the date of the receipt of the demand. A fact which the complainant can only assert but not prove, the burden would essentially be on the drawer of the cheque to prove that he had in fact made the payment pursuant to the demand. 24. By the nature of the offence under S.138 of THE ACT, the first ingredient constituting the offence is the fact that a person drew a cheque. The identity of the drawer of the cheque is necessarily required to be known to the complainant (payee) and needs investigation and would not normally be in dispute unless the person who is alleged to have drawn a cheque disputes that very fact. The identity of the drawer of the cheque is necessarily required to be known to the complainant (payee) and needs investigation and would not normally be in dispute unless the person who is alleged to have drawn a cheque disputes that very fact. The other facts required to be proved for securing the punishment of the person who drew a cheque that eventually got dishonoured is that the payee of the cheque did in fact comply with each one of the steps contemplated under S.138 of THE ACT before initiating prosecution. Because it is already held by this Court that failure to comply with any one of the steps contemplated under S.138 would not provide "cause of action for prosecution". Therefore, in the context of a prosecution under S.138, the concept of taking cognizance of the offence but not the offender is not appropriate. Unless the complaint contains all the necessary factual allegations constituting each of the ingredients of the offence under S.138, the Court cannot take cognizance of the offence. Disclosure of the name of the person drawing the cheque is one of the factual allegations which a complaint is required to contain. Otherwise in the absence of any authority of law to investigate the offence under S.138, there would be no person against whom a Court can proceed. There cannot be a prosecution without an accused. The offence under S.138 is person specific. Therefore, the Parliament declared under S.142 that the provisions dealing with taking cognizance contained in the CrPC should give way to the procedure prescribed under S.142. Hence the opening of non - obstante clause under S.142. It must also be remembered that S.142 does not either contemplate a report to the police or authorise the Court taking cognizance to direct the police to investigate into the complaint. 25. The question whether the respondent had sufficient cause for not filing the complaint against DAKSHIN within the period prescribed under THE ACT is not examined by either of the Courts below. As rightly pointed out, the application, which is the subject matter of the instant appeal purportedly filed invoking S.319 CrPC, is only a device by which the respondent seeks to initiate prosecution against DAKSHIN beyond the period of limitation stipulated under the Act. 26. No doubt S.142 authorises the Court to condone the delay in appropriate cases. We find no reason to condone the delay. 26. No doubt S.142 authorises the Court to condone the delay in appropriate cases. We find no reason to condone the delay. The justification advanced by the respondent that it is during the course of the trial, the respondent realized that the cheque in question was drawn on the account of DAKSHIN is a manifestly false statement. On the face of the cheque, it is clear that it was drawn on account of DAKSHIN. Admittedly the respondent issued a notice contemplated under Clause (b) of the proviso to S.138 to DAKSHIN. The fact is recorded by the High Court. The relevant portion is already extracted in para 16. 27. The judgment under appeal is contrary to the language of THE ACT as expounded by this Court in Aneeta Hada (supra) and, therefore, cannot be sustained. The judgment is, accordingly set aside. The appeal is allowed. In the circumstances, the costs is quantified at Rs.1,00,000/- (Rupees One Lakh Only).” 7. The facts of this case are broadly similar as the one considered by the Apex Court in Harihara Krishnan's case (supra). In the facts of this case, originally the sole accused was the individual director of the drawer Company (first revision petitioner herein). The complaint dated 6.10.2008 was filed on 13.10.2008. It is long thereafter the complainant has filed application purportedly invoking the provisions contained in Section 319 of Cr.P.C. on 26.2.2014 seeking to array the drawer Company/second revision petitioner herein as additional accused No.2 in the complaint which was allowed by the trial court on 8.4.2014. It is not in dispute that the complainant has not sought for any condonation of delay in taking cognizance as against additional accused No.2 at that stage. To this extent the facts in this case are quite similar to the one in Harihara Krishnan' s case (supra) considered by the Apex Court. The only relevant difference in this case is that neither the first revision petitioner (original accused No.1) nor the revision petitioner No.2 (additional accused No.2 drawer Company) have sought to challenge the said interlocutory order of the trial court rendered on 8.4.2014 allowing the application dated 26.2.2014 filed under Section 319 of the Cr.P.C. to array the drawer Company as additional accused. The revision petitioners had undergone the trial which invited the conviction and sentence and thereafter, they have filed appeal to challenge the trial court judgment of conviction and sentence which has also been dismissed. The Apex Court has clearly held in paragraph 21 of Harihara Krishnan’s case (supra) that there is no necessity to the drawer Company to challenge the order of the trial court in allowing the plea of the complainant filed under Section 319 of the Cr.P.C., so as to subsequently array the drawer Company as an additional accused. The legal basis for this is that it has been categorically held by the Apex Court in Aneeta Hada v. M/s.Godfather Travels and Tours Private Ltd. reported in (2012) 5 SCC 661 , that where the drawer of the cheque is a Company/partnership firm, then the principal offender in such cases is the drawer Company and the complaint is maintainable only if the principal offender from the drawer Company is made an accused and in the absence of such arraying of the drawer Company, the complaint is not maintainable against the directors/officers of the drawer Company. Accordingly, it was held by the Apex Court in paragraph-21 of Harihara Krishnan’s case (supra) that the individual director (accused) cannot be told in view of the law declared in Aneeta Hada’s case (supra) that such individual director cannot make any grievance on the ground that the drawer Company did not challenge the order of summoning ordered by the trial court in Section 319 application. As noted herein above, it was categorically held by the Apex Court that it is always open to the drawer Company to raise the defence that the initiation of prosecution against the drawer Company is barred by limitation and that the drawer Company need not necessarily challenge the summoning order at that stage and that the defence is open at the time of trial. Since the said defence is open at the time of trial, it goes without saying that the said defence is also open in the appeal and revision which is arising out of the trial court judgment. Since the said defence is open at the time of trial, it goes without saying that the said defence is also open in the appeal and revision which is arising out of the trial court judgment. Therefore, the mere fact that both the revision petitioners, more particularly the second revision petitioner, has not challenged the order of summoning issued by the trial court on 8.4.2014 on the application dated 26.2.2014 filed by the complainant under Section 319 of the Cr.P.C., is not a ground to non-suit their contentions. Accordingly, it is only to be held that the prosecution, which was sought to be maintained as against the accused, more particularly as against additional accused No.2, through the subsequent summoning process, would amount to a device by which the complainant sought to initiate prosecution against the drawer Company beyond the period of limitation stipulated under Section 142 of the Act. Therefore, the decision of the Apex Court in Harihara Krishnan’s case (supra) would apply on all force in the facts of this case. On that limited ground alone, the accused are entitled to succeed and the prosecution is only to be held as ultravires and illegal. This crucial aspect of the matter has been completely overlooked by both the courts below and therefore, the impugned judgments of the trial court and the appellate court are illegal, ultravires and perverse. In the light of these aspects, it is not necessary to examine whether the findings of fact made by the trial court on the merits of the matter is correct or not. 8. It is also to be noted that the specific averments in the complaint filed in this case is that the drawer of the cheque is the sole original accused therein (first revision petitioner). No averments have been made in the complaint that the drawer of the cheque in the instant case is the Company concerned (which was later subsequently arrayed as additional accused No.2). Therefore, in the lack of specific averments in the complaint that the drawer of the cheque is accused No.2, would give rise to the situation that it was legally impermissible for the trial court to have taken cognizance as against additional accused No.2 in this case at all. Therefore, in the lack of specific averments in the complaint that the drawer of the cheque is accused No.2, would give rise to the situation that it was legally impermissible for the trial court to have taken cognizance as against additional accused No.2 in this case at all. Further it is the specific case of the complainant in his application filed under Section 319 of Cr.P.C. as well as in his evidence that the drawer of the cheque is the Company concerned. Since cognizance could not have been taken as against the drawer Company in view of the specific averments in the complaint taken by none other than the complainant, and in view of the divergent stand taken by him subsequently in Section 319 of Cr.P.C. application as well as in his evidence, there is no question of validly taking cognizance or continuing prosecution as against accused No.1 inasmuch as he is only an individual director of the drawer Company and therefore, he could only be vicariously liable and that such an individual director have been made only vicariously liable, provided the complaint is otherwise validly instituted. Here the cognizance against the drawer Company is illegal and ultravires due to lack of averments in the complaint. It was equally impossible to take cognizance or continue prosecution as against the individual director (sole original accused/accused No.1). Therefore, the foundation of the prosecution launched against both the accused has to come on to the ground. For this reason also, the conviction and sentence are liable to be interfered with in this revision petition as the same are illegal and ultravires. 9. It is also not in dispute that the statutory demand notice under Section 138 of proviso (b) was served by the complainant only to the individual director (accused No.1) and not to the drawer Company (additional accused No.2). It has been categorically held by the Apex Court in Kirshna Texport & Capital Markets Ltd. v. Ila A. Agrawal, reported in (2015) 8 SCC 28 that in a case where the drawer of the dishonoured cheque is a Company/partnership firm, then the statutory demand notice under Section 138 proviso (b) has to be mandatorily served on the drawer Company and such notice is not mandatory as far as the directors and officials of the Company are concerned so long as notice is served on the drawer Company. 10. 10. Sri.C.A.Majeed, learned counsel appearing for the second respondent/complainant, would urge that it has been held by the Apex Court in M/s.Bilakchand Gyanchand Co. v. A.Chinnaswami reported in (1999) 5 SCC 693 = AIR 1999 SC 2182 and Rajneesh Aggarwal v. Amit J. Bhalla reported in (2001) 1 SCC 631 = AIR 2001 SC 518 that failure to issue statutory demand notice under Section 138 proviso (b) to the drawer Company is not fatal, so long as such notice is issued to the director of the Company who is the signatory to the cheque drawn by the Company. In this regard it is relevant to note that by a two Judge Bench judgment dated 26.11.1999, the Apex Court had earlier held in Anil Hada v. Indian Acrylic Ltd. reported in (2000) 1 SCC 1 that even in a case where the drawer of the dishonoured cheque is a Company, the complaint could be maintainable even as against the individual director/directors of the Company who were in charge of and responsible for the affairs of the Company even if the drawer Company has not been arrayed as an accused. Later, as per the judgment dated 27.4.2012, a three Judge Bench of the Apex Court in the case in Aneeta Hada's case (supra) has held that so long as the cheque is drawn from an account maintained by the Company the offence Section 138 of the N.I.Act is committed by the drawer of the Company and so the Company being the drawer is the principal offender in such an offence and the criminal complaint alleging offence under Section 138 could be maintained validly only by arraying the accused who is the drawer of the Company as an accused and though the other directors who were responsible for the affairs of the Company as conceived in Section 148 of the N.I.Act would also be arrayed as co-accused. Therefore, in view of the law declared subsequently by a three Judge Bench in Aneeta Hada’s case (supra), the view earlier taken by a two Judge Bench in Anil Hada's case (supra) stood overruled. Therefore, in view of the law declared subsequently by a three Judge Bench in Aneeta Hada’s case (supra), the view earlier taken by a two Judge Bench in Anil Hada's case (supra) stood overruled. Thereafter, the Apex Court in Kirshna Texport & Capital Markets Ltd.'s case (supra) has held that statutory demand notice on the drawer Company is mandatory where the drawer of the dishonoured cheque is a Company and that in such cases, it is not necessary to additionally issue notices to the directors/officers of the Company so long as the statutory demand notice is served on the drawer Company, etc. After considering the rival submissions on either side, this Court is of the prima facie view that the position held in the judgment in Bilakchand Gyanchand Company's case (supra) reported in (1999) 5 SCC 693 and Rajneesh Aggarwal's case (supra) reported in (2001) 1 SCC 631 have been on the basis of the previous perspective that the complaint could be maintained as against the individual directors of the drawer Company/corporate body concerned, even without arraying the principal offender/drawer Company where the dishonoured cheque has been issued from the account of the Company, etc. That perspective had undergone drastic change with the declaration of law made by a three Judge Bench decision rendered on 27.4.2012 by the Apex Court in Aneeta Hada’s case (supra) reported in (2012) 5 SCC 661 and that position is reflected in the legal position conclusively settled by the Apex Court in Kirshna Texport & Capital Markets Ltd.'s case (supra) about which reference has been made herein above as well as in the judgment of this Court in Balanchandran's case (supra). Therefore, the contention made by the complainant in that regard does not appear to be tenable. However, there is no necessity to pronounce any final opinion in this case based on that specific contention urged by the complainant in this case based on Bilakchand Gyanchand Company's case (supra) and Rajneesh Aggarwal's case (supra) in view of the findings made by this Court already herein above on the other rival contentions of the parties. 11. Accordingly, it is only to be held that the revisional interdiction of this Court is imperative as the impugned judgments of the Courts below are illegal and ultravires for the reasons stated herein above. 11. Accordingly, it is only to be held that the revisional interdiction of this Court is imperative as the impugned judgments of the Courts below are illegal and ultravires for the reasons stated herein above. In this view of the matter, the impugned judgments of both the courts below will stand set aside and the conviction and sentence imposed on the petitioners will also stand set aside. Correspondingly it is ordered that the revision petitioners/accused No.1 and accused No.2 will stand acquitted for the offence punishable under Section 138 of the Negotiable Instruments Act and will be set at liberty. The Registry will forward a copy of this order to the trial court and the appellate court concerned for necessary information. The Registry will also return back the LCR to the trial court. With these observations and directions, the above Criminal Revision Petition will stand finally disposed of.