Legal Question in Criminal Law in India
A Division Bench of two judges of Madras High Court in 138 case held:
37. In the light of what is stated above, the answer to the question is, statutory notice to every person, including the director, who is sought to be prosecuted, is mandatory.
Case No..O.P.No.5108 OF 2002
Does it mean that if notice is not served on all the directors, 138 case falls. Does this position still remain or over ruled by supreme court in India?
4 Answers from Attorneys
notice has to be issued to the company and every official signatory on the cheque who are to be prosecuted u/s 138 N.I.Act.
in this situation, the complaint does not hold good qua the director to whom notice remains un served.
You cannot file your complaint without sending the statutory notice u/s 138 NI act.
A ratio is precedent on facts. Check facts of the case decided by Mad HC and facts of your case and act accordingly.
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