Madras High Court
Saj Flight Services (P.) Limited vs P.T. Gopala Raja on 30 March, 1996
Equivalent citations: [1997]88COMPCAS344(MAD)
JUDGMENT
N. Arumugham J.
1. On ordering notice of motion, I have heard the Bar of for the respective parties for and against the impugned order passed by the XVIIIth Metropolitan Magistrate, Madras, in M.P. No. 711 of 1996 in C.C. No. 2720 of 1995 dated February 20, 1996, thereby discharging the respondent/accused of the offence under section 138 and 141(2) of the Negotiable Instruments Act, 1881 (hereinafter referred to as "the Act").
2. The two grounds upon which the revision was sought to be admitted are, firstly while filing a private complaint under section 200 of the Criminal Procedure Code, 1973, by the revision petitioner/complainant against the respondent/accused for the offence under section 138 and 141(2) of the Act, on the basis of a cheque issued on February 18,1995, for a sum of Rs. 2,00,000 which bounced subsequently followed by the issuance of legal notice with no reply. However, the learned magistrate was not correct in holding that the complaint was bad for not adding the other partners of the firm on whose behalf the said instrument was given and that, secondly, the finding of the learned magistrate that there was no enforceable claim which arose under the instrument alleged to attract the Explanation to section 138 of the Act is not correct, for the facts specifically pleaded in the counter-statement. It was contended by the Bar for the respondent that though the respondent/accused has admitted his signature in the cheque given in favour of the complainant, it really means for a sum of Rs. 1,00,000 only and not for Rs. 2,00,000 as found in the said cheque and that for other facts he has referred to his contentions in his counter statement. It was also contended that the non-impleading of the other partner as well as the company is fatal to the whole attempt of the complainant.
3. Having heard the Bar for the respective parties, in the context of the impugned order with the above substratum in question, I have perused the impugned order as well as the connected case records. It is all well to know that the very plea of the complainant is that a cheque for a sum of Rs. 2,00,000 in question has been given signed by the respondent herein in the capacity of the managing partner of Alvitone Laboratories. The signature and the seal of the rubber stamp found in the cheque leaves were not in controversy but what has been disputed is the consideration of Rs. 2,00,000 found in the cheque and that is put at every stake by contending that the signatory was given only a sum of Rs. 1,00,000 and not Rs. 2,00,000. When the instrument of cheque manifestly refers to a particular quantum of consideration, it is for the person who assets upon the basis of that instrument to prove every content of the same as provided by law and if such obligation is completed, then it is for the other person to adduce rebuttal evidence to disprove it on the basis of his plea and the legal evidence. This kind of legal exercise can be done only during the trial for the very reasoning that parties are at loggerheads on factual aspects and not on the question of law. If on this ground alone the prayer for total discharge was asked for, agreeing upon the said ground I may say, granting the relief of discharge by the trial magistrate, is an erroneous approach and cannot be countenanced by any canons of procedural law and that is what happened in the instant case. It is always open for the respective parties to adduce the legal evidence before the trail court particularly in the context that the owner of the cheque, which bounced owns the cheque having given to the complainant and that the dispute rests only with regard to the quantification of the amount referred to therein. On this ground alone, I am not inclined to interfere with the impugned order.
4. The next ground projected before me is that the impugned order is not correct for the reasoning that the persons to be added as accused have not been made parties. A casual reading and minimum understanding of sections 141 and 142 of the Act would clearly mean that the necessary and proper parties must be added to enforce the legal claim against them for the purpose of proving the offence under section 138 of the Act. This is a case where the accused admitted his signature and drawing of the cheque in question given to the complainant. Since he has drawn the cheque only in the capacity of a managing partner of Alvitone Laboratories, it is thus the very signature in the instrument itself does not reveal that it was meant not in his individual capacity, but the debt was incurred for and on behalf of the firm or company. If that is so, all the parties or partners or directors of the company on whose behalf the managing partner or the director had given the instrument acknowledging the liability or debt. If that is the position, all the persons concerned inclusive of the other directors of the partners must be jointly and severally liable for which every one has to be added as parties. It was in this context, the learned trial magistrate has observed so and maintained his observation. It is under these circumstances, I have to necessarily endorse the view of the learned trial magistrate with regard to this point. Accordingly, I reject the above contentions made on behalf of the petitioner.
5. But for the first ground referred to me earlier, while inclining to interfere with the impugned order, I do not propose to constrain myself with the admission of this revision by setting aside the impugned order, but the ends of justice would require that the matter shall be remitted back to the trail court once again for fresh consideration, giving opportunity to the revision petitioner herein to add or implead the company or the firm and other directors or partners of the company along with the accused as accused in the main petition and adduce legal evidence to prove his case for the offence under section 138 and 141(2) of the Act and the respondent/accused is also authorised to adduce the rebuttal evidence and other legal evidence in furtherance of his case and having so done, the court below is expected to give full adjudication of the matter in hand as expeditiously as possible.
6. In the result, for all the foregoing reasoning, the revision is admitted and accordingly allowed. But for compliance with the directions given above, the whole matter is hereby remitted back to the file of the learned trail magistrate for fresh disposal as indicated above.