Madras High Court
Mr. M.S. Rama Mohan Rao vs Mrs. S. Nagu Bai on 24 June, 2003
Equivalent citations: I(2004)BC368, [2003]117COMPCAS403(MAD)
ORDER A. Packiaraj, J.
1. This revision has been filed by the petitioner, who is A-5 in C.C. No. 3687 of 1999 against the orders passed in Crl. M.P. No. 1686 of 2000, on the file of the XIV Metropolitan Magistrate, Egmore, declining to drop the proceedings initiated under Section 138 of the Negotiable Instruments Act.
2.The circumstances under which the petition has come to be filed is as follows:
A-1 is the Company, represented by its Managing Director Mr. D. Ravi Shankar, who is A-3 in the case, A-2 is the Branch-in-charge of A-1 Company and A-4 to A-7 are the Directors, who are alleged to have been in charge of the day to day affairs of A-1 Company. It is stated that they are carrying on business of Hire purchase Financing among other business and in such capacity the complainant had deposited a sum of Rs. 2,00,000/- with the second accused Company as Fixed Deposit and after the maturity period was over, she went and approached for the maturity amount. After repeated requests, the company had given a cheque, signed by A-2 for a sum of Rs. 2,05,000/-, which on presentation got dishonoured on account of `Insufficient Funds' and hence after observing all formalities, the prosecution was launched against the company, the Managing Director, the Branch Manager and the other Directors. On appearance, the petitioner whose rank is A-5, took a preliminary objection stating that he had earlier resigned from the Company as a Director and hence he cannot be prosecuted and that merely stating in the complaint that the Directors are in charge of the company is not enough, but there should also be a specific averment that they were in charge of the business at the time of issuance of the cheque. The learned Magistrate did not accept the above contentions and hence has dismissed the said petition. Hence the present revision.
3. On going through the complaint, I find that the complainant has averred that A-4 to A-7 are in charge of the day to day affairs and conduct of the business. True that they have not said that they were in charge at the time of the issuance of the cheque. In my opinion because of the absence of the specific words "at the time of issuance of the cheque", the complaint itself cannot be thrown out. A reading of the entire complaint as such would disclose that the petitioner was also one among the persons in charge of the business. One cannot expect the complaint to be, so meticulously drafted as to bring out all the details of the prosecution case. The filing of the complaint is only for the purpose of taking cognizance of the offence and it is only at the stage of trial, the prosecution has to let in evidence to substantiate the claim of the complaint.
4. The contention of the learned counsel is that merely stating that the accused were in charge of the business would not suffice and the complainant should make out the case that they were in charge of the business at the time of issuance of the cheque. There again, I have to necessarily reiterate what I have earlier stated that the complaint is only for the purpose of taking cognizance and it is for the prosecution to establish how they are in charge of the day to day affairs.
5. The learned counsel appearing for the petitioner further submits that the petitioner had already resigned from the Directorship. However, the complainant in his complaint at paragraph-8 says that "On issuance of the notice to all the Directors, such of those directors who had replied stating that they have resigned have been omitted to be arrayed as accused". But this petitioner obviously has not sent his reply disclosing his resignation to the complainant and consequently, the complainant had not deleted his name.
6. In support of his contention, though the learned counsel would produce the concerned letter addressed to the complainant here in this court, showing the resignation of the petitioner from the Company as Director, this Court sitting here in a revisionary jurisdiction cannot go into the preliminary issue, since these are matters that can be decided only by way of letting in evidence. Therefore, In view of the fact that these matters cannot be gone into at this stage, I am inclined to dismiss the revision as such.
7. However, it is to be seen of late complaints are being filed according to the whims and fancies roping in persons who are merely associated with the company, irrespective of the fact that whether or not they are liable, in order to coerce them to come for a settlement. Therefore, when summons have been issued pursuant to the Magistrate taking cognizance on the basis of the complaint and the sworn statement, wherein such persons are added as an accused, it is the bounden duty of the prosecution to establish by way of letting in evidence as to how they are in charge or whether they at the relevant time responsible for such acts. Mere words that they are in charge and conduct would not suffice for convicting a person. There should be something more to establish the guilt. If the prosecution is not able to prove the same or in the alternative, if the accused are able to establish that they are innocent, such complainants should not be allowed to escape from being penalised for wrong prosecution. The Court has a duty to punish the guilty while at the same time take action against the complainant for filing frivolous complaints and if the accused persons establish their innocence or complaint filed without enough basis, Section 250 Cr.P.C has to be resorted to and direct the complainant to pay costs to such of those accused. This would certainly cause the complainant to make the real persons who are involved in the transaction as accused, and not proceed against persons though associated with the Company as a mere Director.
With the above observations, this revision is dismissed. Consequently, connected Crl.M.P is closed.