Madras High Court
M/S.Top Knit Processing Mill Private ... vs M/S.Accurate Water Treatment on 19 September, 2022
Author: G.Jayachandran
Bench: G.Jayachandran
Crl.O.P.No.14828 of 2019
and Crl.M.P.No.7258 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 19.09.2022
CORAM :
THE HONOURABLE Dr. JUSTICE G.JAYACHANDRAN
Crl.O.P.No.14828 of 2019
and
Crl.M.P.No.7258 of 2019
M/s.Top Knit Processing Mill Private Limited,
Rep.by its Authorised Signatory,
C.Sivasamy. .. Petitioner
Vs.
M/s.Accurate Water Treatment,
Rep.,by its Commercial Manager/Power Agent,
K.Sivakumar ..Respondent
PRAYER : Criminal Original Petition has been filed under section 482
of Criminal Procedure Code to call for the records in C.C.No.838 of
2018 on the file of the Judicial Magistrate No.2 (Fast Track Court-
Magisterial Level) at Coimbatore and quash the same.
For Petitioner : Mr.K.Myilsamy
For Respondent : Ms.Meghna Kumar
1/6
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.14828 of 2019
and Crl.M.P.No.7258 of 2019
ORDER
M/s.Top Knit Processing Mill Private Limited, represented by its Authorized Signatory, C.Sivasamy who is arrayed as an accused in a private complaint for prosecution under Section 138 of Negotiable Instruments Act, alleging that the other Directors of the company have not been arrayed as accused and the complaint is bereft of details as to how the offence under Section 138 of N.I.Act is made out. The said complaint is sought to be quashed
2. It is specifically contended that there is no averments in the complaint with regard to participation of the petitioner in the company's activities and a person who was in-charge of or responsible for the conduct of the business at the time of issuance of the cheque. That apart, it is also contended that the complainant has not followed the pre- mandatory requirements as contemplated under Section 138 of N.I.Act.
3. The learned counsel for the respondent submits that the complaint filed against the company, which has issued the cheques and 2/6 https://www.mhc.tn.gov.in/judis Crl.O.P.No.14828 of 2019 and Crl.M.P.No.7258 of 2019 the said cheques were issued in the course of business transaction. In the complaint, the circumstances under which the cheques were issued by the accused company has been explained and the cheques presented for collection, the date on which the three cheques were presented and same had been returned with an endorsement “Funds Insufficient”. After causing statutory notice on 04.10.2017, the complaint filed within the statutory notice period prescribed. Therefore, there is no infirmity or illegality in the complaint to interfere under Section 482 of Cr.P.C., to quash.
4. The learned counsel for the petitioner relying upon the judgment of the Hon'ble Supreme Court rendered in Himanshu Vs. B.Shivamurthy and another reported in 2019 (1) CTC 689, would submit that the Directors of the company who are responsible for the affairs of the company ought to have been arrayed as accused, failing which, the complaint is liable to be quashed. 3/6 https://www.mhc.tn.gov.in/judis Crl.O.P.No.14828 of 2019 and Crl.M.P.No.7258 of 2019
5. This Court on considering the judgment of the Hon'ble Supreme Court cited supra, finds that in the said case the cheque was drawn by Lakshmi Cement and Ceramics Industries Limited and signed by its Director. Notice of demand was served on the Director alone. The company was not arrayed as an accused. In the said circumstances, taking note of the fact that the Director of the Company can be arrayed as an accused under Section 141 of N.I.Act, only if the said Director is responsible for the affairs of the company and such vicarious liability will arise. If the company is not arrayed as an accused, independently the Director cannot be prosecuted.
6. In this case, the statutory notice was issued to the company and the prosecution is against the company and Sivasamy, who is the authorized signatory of the cheque and to represent the company. There cannot be any doubt about the legal position that the company being the jurisdic body, it is represented by some human agency, being the requirement under law. Sivasamy is the representative of the company and also the authorized signatory of the company. The 4/6 https://www.mhc.tn.gov.in/judis Crl.O.P.No.14828 of 2019 and Crl.M.P.No.7258 of 2019 complainant in his wisdom has opined that the other Directors of the company are not vicariously liable, since they are not actively participating in the affairs of the company. It is left to the complainant wisdom. The grievance is that not at all the Directors of the accused company were included as accused. The signatory of the subject cheque and the drawer of the subject cheque cannot dictate the complainant to include the non-executive Directors of the company as accused in the complaint.
7. This Court finds no merit in this petition. Hence the Criminal Original Petition to quash is dismissed. Consequently, the connected Criminal Miscellaneous Petition is also dismissed. The Investigating Officer is at liberty to file final report.
19.09.2022 Internet : Yes/No Index: Yes/No rpl To The Judicial Magistrate No.2 (Fast Track Court-Magisterial Level), Coimbatore.
5/6 https://www.mhc.tn.gov.in/judis Crl.O.P.No.14828 of 2019 and Crl.M.P.No.7258 of 2019 Dr.G.JAYACHANDRAN, J.
rpl Crl.O.P.No.14828 of 2019 and Crl.M.P.No.7258 of 2019 19.09.2022 6/6 https://www.mhc.tn.gov.in/judis