Sunil Kumar Guin, J.
1. This revisional application is for quashing the proceeding, being Case No. C. 2067 of 1989, under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act'), pending before the learned Judicial Magistrate, Ninth Court, Alipore. The facts relevant for the appreciation of the points raised in the instant revision may be briefly stated as follows :
In discharge of its liability, a company named Ambitious General Finance and Housing Co. (P.) Ltd. issued a cheque No. 018455 drawn by its director on September 10, 1989, for Rs. 15,000 in favour of the complainant, Subhas Chandra Mondal, who is the opposite party in the instant revision. Though the complainant presented it to the bank for payment on September 10, 1989, yet it bounced and the bank's intimation in this regard was sent to the complainant on September 12, 1989. The cheque was presented to the bank for payment for a second time but it bounced then also. Then the cheque was presented to the bank for payment for the third time on November 16, 1989. This time also it bounced and the bank's intimation in this regard was received by the complainant on November 17, 1989. The said company also issued in discharge of its liability another cheque No. 018456 drawn by its director on September 20, 1989, for Rs. 10,000 in favour of the complainant. This cheque was presented to the bank for payment for the first time on September 22, 1989, for the second time on September 27, 1989, and for the third time on November 9, 1989. But the cheque bounced all the three times. For the dishonour on presentation for the third time, the complainant received the bank's intimation in this regard on November 10, 1989. The complainant is said to have sent a notice in writing demanding payment of the amounts ofthe cheque on November 18, 1989, as required under Section 138(b) of the Act and the accused persons are said to have received the said notice on November 22, 1989. The instant proceeding under Section 138 of the Act was started on presentation of a petition of complaint by the complainant on December 21, 1989, and it gave rise to Case No. C. 2067 of 1989, now pending before the learned Judicial Magistrate, Ninth Court, Alipore.
2. Accused Nos. 1 to 3 have filed the instant revisional application for quashing the aforesaid proceeding.
3. Mr. Deb, learned advocate appearing for the petitioners, has submitted that cheque No. 018455, dated September 10, 1989, for Rs. 15,000 was presented to the bank for payment on September 10, 1989, and returned unpaid and that the bank's intimation in this regard was given to the payee, i.e., the complainant-opposite party on September 12, 1989. He has also submitted that cheque No. 018456, dated September 20, 1989, for Rs. 10,000 was presented to the bank for payment on September 22, 1989, and returned unpaid and that the bank's intimation in this regard was given to the payee, i.e., the complainant-opposite party on September 23, 1989. He has argued that, as the notice in writing demanding payment of the amounts of the said dishonoured cheques was not given in the instant case within fifteen days of the receipt of information by the complainant from the bank regarding the return of the cheques as unpaid, as required under Section 138(b) of the Act, the instant case under Section 138 of the Act is not maintainable. He has also argued that, by subsequent presentation and dishonour of the cheques, the said period of limitation cannot be saved. He has further argued that the company, Ambitious General Finance and Housing Company (P.) Ltd., is the principal offender, that the accused persons, being its director and officers are only vicariously liable and that as the principal offender has not been impleaded as an accused, the instant proceeding should fail and should be quashed. He has also argued that the learned Magistrate took cognizance mechanically without applying his judicial mind inasmuch as there are no allegations in the complaint that the petitioners were the persons who, at the time the offence was committed, were in charge of and were responsible to the company for the conduct of its business.
4. Mr. Pal, the learned advocate, appearing for the opposite party, has argued that, in order to attract the provision of Section 138 of the Act, the cheques are to be presented to the bank within a period of six months from the date on which they were drawn or within the period of its validity, whichever is earlier, as provided under Clause (a) of Section 138 of the Act, that the cheques in question were valid for six months from the dates when they were drawn, that though the said cheques bounced twice, still, at the request of the accused person, cheque No. 018455 dated September 10, 1989, and cheque No. 018456, dated September 20, 1989, were presented to the bank for payment for the third time on November 16, 1989, and November 9, 1989, respectively, well within the period of their validity and that, by presentation of the cheques to the bank for payment for the third time within the period of validity of the cheques, the payee or the holder in due course, at best can be said to have waived the right that accrued to him on dishonour of the cheques on the first and second presentation to the bank for payment. He has argued that though the cheques in question were presented to the bank for payment for the third time, they were so presented well within the period of their validity, that the cheques were again dishonoured on November 16, 1989, November 9, 1989, and that the complainant received the bank's intimations in this regard on November 17, 1989, and November 10, 1989, and issued the notice in writing demanding payment of money on November 18, 1989, within fifteen days from the date of receipt of the bank's intimations, as enjoined by Clause (b) of Section 138 of the Act. So, he has submitted that the notice under Section 138(b) of the Act is valid and legal and that the instant proceeding is maintainable. He has also argued that the company is not a necessary party in the instant proceeding and that there are sufficient averments in the complaint against the accused persons and that the learned Magistrate has rightly taken cognizance on application of his mind to the allegation made in the complaint against the accused persons and so, he has submitted that the instant revisional application should be dismissed and the stay order should be vacated.
5. First, let me consider whether the instant case under Section 138 of the Act is maintainable or not. In challenging the maintainability of the instant case, Mr. Deb, the learned advocate appearing for the petitioners, has argued that cheque No. 018455, dated September 10, 1989 and cheque No. 018456, dated September 20, 1989, were presented to the bank for payment on September 10, 1989, and September 22, 1989, respectively, and that the bank's intimations in this regard were given to the payee, i.e., the complainant-opposite party on September 12, 1989, in respect of cheque No. 018455, dated September 10, 1988, and on September 23, 1989, in respect of the other cheque. He has argued that, since the notice in writing demanding payment of the amount of the said dishonoured cheques was not given within fifteen days of the receipt of the information by the complainant opposite party from the bank regarding the return of the cheques as unpaid, as required under Section 138(b) of the Act, the instant case is not maintainable. He has submitted that by subsequent presentation and dishonour of the cheques on such presentation, the said period of limitation cannot be saved or extended. Mr. Pal, the learned advocate for the opposite party, has, on the other hand, argued that though the cheques in question bounced on first presentation to the bank for payment, still, at the request of the accused persons and to give them an opportunity to pay the amounts, the said cheques were presented to the bank for the second time and also for the third time. He has further argued that as the cheques bounced even on the third presentation to the bank for payment on November 16, 1989, and November 9, 1989, well within the period of their validity, the, complainant issued the notice in writing under Section 138(b) of the Act within fifteen days from the dates of receipt of the bank's intimations as to non-payment of cheques which were received on November 17, 1989, and November 10, 1989, respectively. As the said notice under Section 138(b) of the Act was issued within fifteen days from the aforesaid dates of receipt of the bank's intimation, he has further argued that the notice under Section 138(b) is valid and legal and that the instant proceeding is maintainable. Having heard the submission made on both sides and having considered the materials on record and also the provisions of Section 138 of the Act, I am of the opinion that, in the facts and circumstances of the case, the notice issued on November 18, 1989, under Section 138(b) of the Act and received by the accused persons on November 22, 1989, is a valid and legal notice, and that the instant proceeding, therefore, is maintainable. To invoke the provision of Section 138 of the Act, the payee or the holder in due course shall have to present the cheque for payment to the bank within a period of six months from the date on which it was drawn or within the period of its validity, whichever is earlier, as enjoined by Clause (a) of Section 138 of the Act. In the instant case, the cheques were valid for six months from the dates when they were drawn and as such the period of their validity was six months from the date when they were drawn. Section 138 enjoins that the cheque must be presented to the bank within a period of six months or within the period of its validity, whichever is earlier. It does not prohibit or forbid presentation of the cheque to the bank more than once for payment. Nor does it enjoin that such cheque should be presented to the bank for payment only once. So, I am of the opinion that the cheque may be presented to the bank for payment twice or thrice within the aforesaid period of six months or the period of its validity and it cannot be presented to the bank for payment beyond the said period of six months or the period of validity. Of course, when the cheque is presented to the bank for the first time for payment and is returned unpaid, it gives rise to a right in favour of the payee or the holder in due course to initiate a criminal proceeding under Section 138 of the Act against the drawer of the cheque. On such first presentation for payment and dishonour of the cheque on such presentation, the payee or the holder in due course undoubtedly could have enforced his right against the drawer of the cheque. But when he waits and presents the cheque for the second or for the third time, he does so in order to give an opportunity to the drawer to pay or deposit the amount of the cheque in the bank. But, there can be no manner of doubt that when the payee or the holder in due course after the cheque had bounced on first presentation presents the cheque for the second time to the bank for payment, he must be held to have waived the right that had accrued in his favour when the cheque bounced on first presentation. Similarly when the payee or the holder in due course, even after the cheque had been dishonoured for the second time, presents the cheque to the bank for payment for the third time but within the period of six months from the date of drawal of the cheque or within the period of its validity, the payee or the holder in due course must be held to have waived the right that accrued in his favour when the cheque bounced for the second time. In the instant case, the cheques were presented to the bank for payment for the third time well within the period of six months from the dates when they were drawn and they were returned unpaid then also. On such dishonour of the cheque after they had been presented for payment within the period of six months from the dates when they were drawn, a fresh right accrued in favour of the complainant-opposite party and he can certainly enforce that right by initiating a proceeding under Section 138 of the Act. The bank's intimations in this regard in respect of the cheques in question were received on November 10, 1989, and November 17, 1989, respectively. The notice in writing demanding payment of money under Clause (b) of Section 138 of the Act was given on November 18, 1989, and the same appears to have been received by the accused persons on November 22, 1989. So, the said notice appears to be valid and legal. In that view of the matter, the instant case under Section 138 of the Act appears to be maintainable. So, the first contention as raised on behalf of the petitioners fails.
6. Next, let me consider whether the accused persons who are the director and officers of the company, Ambitious General Finance Housing Company (P.) Ltd., can be proceeded against without the company being impleaded as an accused though the said company is the principal offender inasmuch as it issued the cheque in question drawn on its behalf by its director. Mr. Deb has argued that, as the company has not been impleaded as an accused in this proceeding, the accused persons cannot be proceeded against and that the instant proceeding must, therefore, fail. In support of his view, he has referred to a decision of the Supreme Court in the case of State of Madras v. C. V. Parekh, : 1971CriLJ418 . In that case, four accused persons including the two respondents before the Supreme Court, namely, C. V. Parekh and A. C. Parekh, were prosecuted under Section 120B of the Indian Penal Coderead with Sections 7 and 8 of the Essential Commodities Act and Clause (5) of the Iron and Steel (Control) Order. All these accused persons were convicted and, in convicting the aforesaid two respondents, the Magistrate relied on Section 10 of the Essential Commodities Act, 1955. However, on appeal, the High Court acquitted the said two respondents and the State of Madras filed an appeal before the Supreme Court against that order of acquittal. It was urged before the Supreme Court on behalf of the appellant that the two respondents were in charge of, and were responsible to, the company for the conduct of the business of the company and, consequently, they must be held responsible for the sale and for thus contravening the provision of Clause (5) of the Iron and Steel (Control) Order. This argument was not accepted by the Supreme Court on the ground that it ignored the first condition for the applicability of Section 10 to the effect that the person contravening the order must be the company itself. The Supreme Court has observed as follows (at page 449) ;
'In the present case, there is no finding either by the Magistrate or by the High Court that the sale in contravention of Clause (5) of the Iron and Steel (Control) Order was made by the company. In fact, the company was not charged with the offence at all. The liability of the persons in charge of the company arises only when the contravention is by the company itself. Since, in this case, there is no evidence and no finding that the company contravened Clause (5) of the Iron and Steel (Control) Order, the two respondents could not be held responsible.'
7. Relying upon such observation of the Supreme Court, Mr. Deb has argued that the company is the principal offender and that, unless the company is tried along with the accused persons in the same proceeding, the accused persons who are only vicariously liable for the offence committed by the company cannot be proceeded against in the instant proceeding. But the aforesaid decision of the Supreme Court has been subsequently clarified and explained in the case of Sheoratan Agarwal v. State of Madhya Pradesh : [1985]1SCR719 , which has been referred to by the learned advocate appearing on behalf of the opposite party. The provisions of Section 10 of the Essential Commodities Act which are similar to the provisions of section, 141 of the Act came up for consideration before the Supreme Court in the said reported case. Relying upon the decision in the case of State of Madras v. C. V. Parekh, : 1971CriLJ418 , it was urged before the Supreme Court that the petitioners, the managing director and production manager of the company could not be prosecuted unless the company itself was prosecuted. In rejecting the aforesaid argument, the Supreme Court observed as follows (page 1825 of AIR 1984 SC) :
'We do not think that the language of Section 10 of the Essential Commodities Act justified the submission made on behalf of the petitioners that if it is alleged that the person contravening the order made under the Essential Commodities Act is a company, the prosecution of directors, the officers, and the servants of the company or other persons is precluded unless the company itself is prosecuted. We are afraid the submission made on behalf of the petitioners proceeds upon a misunderstanding of the decision of this court in State of Madras v. C. V. Parekh, : 1971CriLJ418 .'
8. In analysing the provisions of Section 10 of the Essential Commodities Act, the Supreme Court further observed as follows (page 1825) :
'If the contravention of the order made under Section 3 is by a company, the person who must be held guilty and punished are (1) the company itself, (2) every person who, at the time the contravention was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company whom for short we shall describe as the person-in-charge of the company, and (3) any director, manager, secretary or other officer of the company with whose consent or connivance or because of neglect attributable to whom the offence has been committed, whom for short we shall describe as an officer of the company. Any one or more or all of them may be prosecuted and punished. The company alone may be prosecuted. The person-in-charge only may be prosecuted. The conniving officer may individually be prosecuted. One, some or all may be prosecuted. There is no statutory compulsion that the person-in-charge or the officer of the company may not be prosecuted unless he be ranged alongside of the company itself. Section 10 indicates the persons who may be prosecuted where the contravention is made by the company. It does not lay down any condition that the person-in-charge or an officer of the company may not be separately prosecuted if the company itself is not prosecuted. Each or any of them may be separately prosecuted or along with the company. Section 10 lists the persons who may be held guilty and punished when it is a company that contravenes an order made under Section 3 of the Essential Commodities Act. Naturally, before the person-in-charge or an officer of the company is held guilty in that capacity, it must be established that there has been a contravention of the order by the company. That should be axiomatic and that is all that the court laid down in State of Madras v. C. V. Parekh, : 1971CriLJ418 , as a careful reading of that case will show and not that the person-in-charge or an officer of the company must be arraigned simultaneously along with the company if he is to be found guilty and punished.'
9. I have already stated that the provisions of Section 10 of the Essential Commodities Act are similar to the provisions of Section 141 of the Act. Relyingupon the aforesaid decision of the Supreme Court in the case of Sheoratan Agarwal v. State of Madhya Pradesh : [1985]1SCR719 , I hold that the accused persons, being the director and officer of the company may be prosecuted in the instant proceeding even if the company itself has not been made an accused therein. In that view of the matter, the second contention as raised on behalf of the petitioners also fails.
10. Next, let me consider whether there are sufficient allegations in the petition of complaint against the accused persons for the prosecution under Section 138 of the Act and whether the learned Magistrate took cognizance without applying his judicial mind to such allegations. In the petition of complaint, the present petitioners have been made accused as a director and officer of the company. Under Sub-section (1) of Section 141 of the Act, if the person committing an offence is a company, then 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. Sub-section (2) of Section 141, however, provides that notwithstanding anything contained in Sub-section (1), where any offence under this Act has been committed by a company and where it has been 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, then such director, manager, secretary and other officer shall be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. In the instant case, prosecution has been launched against the accused persons as the director and officer of the company within the meaning of Sub-section (2) of Section 141. In paragraph 5 of the petition of complaint, it has been alleged that the offence was committed due to neglect of the accused persons. A specific allegation of fraud and cheating has also been made against the accused persons in paragraph 7 of the petition of complaint. In support of his argument that there are no sufficient allegations against the accused persons to proceed against them, the learned advocate for the petitioners has referred to a decision in the case of Mahalderam Tea Estate Private Ltd. v. D. N. Prodhan [1978] CHN 336 ; [1979] 49 Comp Cas 529 (Cal) and the decision in the case of Krishna Kumar Dalmia v. State [1981] 11 CHN 301. But the facts of the reported case are distinguishable from the facts of the instant case. In the reported case, the accused persons were prosecuted on the allegation that they were in charge of and responsible to the company for the conduct of its business at the time when the offence was committed. But, in the instant case, the accused persons have been prosecuted as the directorand officer of thecompany as per the provisions of Section 141(2) of the Act. There are specific allegations in the petition of complaint that the alleged offence was committed due to neglect of the accused persons and that there are also allegations as to fraud and cheating against the accused persons. So, in my opinion, the decision in the aforesaid reported cases cannot be made applicable to the instant case. As there are definite allegations against the accused persons inasmuch as the commission of the alleged offence has been attributed to neglect on the part of the accused persons the learned Magistrate appears to be quite justified in taking cognizance against the accused persons on such allegation. As such it cannot be said that the learned Magistrate took cognizance mechanically without applying his mind to the allegation made in the petition of complaint. So, the third contention also fails.
11. All the contentions having failed, the instant revisional application must also fail.
12. The revisional application is dimissed. Stay order is vacated. The learned Judicial Magistrate is directed to dispose of the case as expeditiously as possible. He, however, shall not be influenced by any observation of this court regarding the merits of the case.
13. Let a copy of this order be sent to the learned Judicial Magistrate immediately.