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Section 138 of NI Act

(Querist) 01 September 2010 This query is : Resolved 
I filed a case under section 138 of Negotiable instrument act and in my case cheque has been issued by the authorized signatory of the Company which is one of the director but I made 2 other directors as accused along with authorized signatory and last year in September summon has been served on all the 3 directors and out of which 2 directors has received the court summon and attended the court proceedings but till date court is unable to serve the summon on 3rd director(but he is not the authorized signatory)as he was staying in abroad. Can anyone give me SC ruling that only authorized signatory is accused as he has signed the cheque and can I say to the court that kindly drop the 2 directors from the accused list and proceed only against the authorized signatory as he got the court summon and he is also attending court dates. Is there is any judgment in this regard.
R.Ranganathan (Expert) 01 September 2010
If the summons cannot be served ask for paper publication and get "set exparte" order against the 3rd director. Proceed with the other directors after setting the 3rd director exparte.
bhupender sharma (Expert) 01 September 2010
there is provision in the criminal procedure code which provides that withdrawl of the complaint under section 257 which will provide u the liberty to prosecute any one or all of them and to withdraw vive versa.
yogesh bawiskar (Expert) 01 September 2010
you can prayed to court issued a proclaimation warrant against him and you can claimed and attached his moveable and inmovabale property.
H. S. Thukral (Expert) 01 September 2010
If the Director had no role to play in day to day affairs of the company, he can not be made an accused in the cheque bounce case of a Company. But since the process has been issued it can not be recalled back. See that summons are served by any of the alternate methods so that your case proceeds further.
s.subramanian (Expert) 01 September 2010
Yes. I agree with Mr.Harbhajan.
s.subramanian (Expert) 01 September 2010
Yes. I agree with Mr.Harbhajan.
masood ausaf (Expert) 02 September 2010
As per law only the person who has issued the cheque is liable for any proceedings in case of its bouncing and the other are not responsible. Therefore, a this sage when this mistake has alredy been done you have no other option but to get the summons served through any mode last of which is publication in the news papers.
Sukhija (Expert) 03 September 2010
u can drop the third director's name and proceed further.
Arun Kumar Bhagat (Expert) 05 September 2010
Under section 141 all the directors are liable to be prosecuted. You have to make averment that they are persons incharge and responsible for the day to day affairs of the comapny. Since in your case the third director is not the signatory of the cheque and service upon him has not been effected so it is wise to drop proceedings against him by application u/s 257 Cr.P.C and proceed the case against other accused persons. Above all the company and authorised signatory of the cheque are not absolved from their responsibility.


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