[CASE NUMBER] 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH [CASE NUMBER] M/s [ENTITY] Petitioner Versus M/s [ENTITY] Respondent [CASE NUMBER](O&M) M/s [ENTITY] Petitioner Versus M/s [ENTITY] Respondent Date of decision : 19.11.2014 CORAM: HON'BLE MS. JUSTICE [ENTITY] 1. Whether Reporters of the local papers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? Yes 3. Whether the judgment should be reported in the Digest ? Present: Mr. [ENTITY], Advocate for the petitioner Mr. [ENTITY], Advocate for the respondent [ENTITY], J.
This order shall dispose of [CASE NUMBER].
Two petitions have been filed under [SECTION] [ACT] for quashing the complaint as well as summoning order in complaints filed under the [ACT] by the respondent.
The complaint was filed by M/s [ENTITY] as the cheques issued by the petitioner were dishonoured. The trial Magistrate summoned the accused.
Challenge has been laid to the summoning order as well as the complaint mainly on two grounds that no legal notice was issued to the Company before filing the complaints and notice (Annexure P-4) in [CASE NUMBER] refers to seven cheques but in the complaint number of cheques are different.
The issue raised in [CASE NUMBER] is that notice was sent to the Director and not to the Company and the complaint has been filed against the Company and notice was issued with respect to three cheques but the total amount mentioned did not tally.
The respondent had appeared and had filed their reply. In response to [CASE NUMBER] it was pleaded that notice was issued regarding dishonour of two cheques bearing Nos. 097156 and 097157 for a sum of ` 1,25,000/- each and notice was received by the petitioner but he did not send any reply.
In response to [CASE NUMBER], it was pleaded that notice was issued regarding seven cheques and the total cheque amount was ` 8,06,779/- but inadvertently numbers of four cheques was not mentioned in the notice and it was a clerical mistake but the total amount was correctly shown and no response to the notice was received.
Learned counsel for the petitioner contends that both the complaints should be quashed alongwith the summoning order as the petitioner Company did not receive any notice prior to the filing of the complaint. It was urged that the Hon'ble Supreme Court in Aneeta Handa vs. M/s Godfather Travels and Tours Pvt. Ltd., 2012(2) RCR(Criminal) 854 had observed that the prosecution of the Director of a Company without arraying the company as accused was not maintainable and the proceedings were quashed and if the principles are applied to the present case the proceedings should be quashed. It was urged that no complaint is maintainable without a statutory notice as provided under [ACT] and in this case Company is a separate juristic person and notice was necessary. My attention was drawn to the copy of the notice and it was urged that the notice was sent to [ENTITY], Director of the Company and not to the Company. Reliance was also placed upon [PRECEDENT].
On the other hand the submissions made on behalf of the respondents is that strict construction of the provisions and technical view should not be made and notice had been sent to the Managing Director of the Company and the Director represents the Company and the complaint has been filed against the Company which is a legal entity and the trial against the Company can proceed and there is no legal bar.
The issue raised here is whether the Company can be sued when statutory notice had not been served upon it. Applying the doctrine of strict construction, I am of the considered opinion that if the Company is to be prosecuted then the statutory notice is necessary. In this case notice was sent to the Director of the Company and not to the Company whereas the complainant is prosecuting the Company without there being any notice to them. The complaint could not have been filed without first issuing notice. A distinction must be borne in mind that the Director of the Company and the Company are distinct. There is a legal snag and the Company can not be prosecuted nor could have been summoned, therefore, the complaint as well as the summoning order are quashed.
Both the petitions are allowed.
19.11.2014 ([ENTITY]) reena JUDGE