Madras High Court
Saravanan vs G. Sampth on 13 July, 1998
Equivalent citations: 1999CRILJ934, 1998(2)CTC282
ORDER
1. Both these Revisions are being disposed of by a common order, since the parties as well as the issues before this Court are same.
2. The facts in Crl.R.C. No.418 of 1997 are these: The petitioner/accused issued a cheque for a sum of Rs.5,000 dated 25.7.92 to one Selvam. He made over the same to one Annadurai. Thereafter, the accused received the cheque from the said Annadurai and handed over the same to the complainant/respondent herein towards discharge of his liability on having purchased silk from him. The cheque was presented and the same was dishonoured. Again on the instructions of the petitioner/accused, the complainant presented the cheque after three months. This time also the cheque was dishonoured, as funds was insufficient. Since the amount was not paid even on notice, a complaint was filed under Section 138 of the Negotiable Instruments Act. After trial, the trial court convicted the petitioner and sentenced him to undergo R.I. for 2 months and to pay a fine of Rs.2,000, in default to undergo S.I. for 3 months. As against this judgment, the petitioner filed an appeal and the same was dismissed. Hence, the revision.
3. The facts in Crl.R.C. No.431 of 1997 are as follows: The complainant was doing silk business. The accused/petitioner purchased silk from the respondent on credit basis. To settle the amount, the accused issued a cheque for Rs.11,000 to the respondent on 5.7.92. When the cheque was presented, the same was dishonoured. Again, it was presented on the instructions of the accused. However, the same was also dishonoured. Therefore, on 11.1.93, he issued a notice. Even then, there was no payment. Hence, a complaint was filed under Section 138 of the Negotiable Instruments Act. After trial, the trial court convicted the petitioner and sentenced him to undergo 2 months R.I. and to pay a fine of Rs.3,000, in default to undergo simple imprisonment for 3 months. This conviction was confirmed in the appeal. Hence, the revision.
4. The learned counsel appearing for the petitioner in both the Revisions would press into service the following contentions: (i) On receipt of the memo from the bank intimating the insufficiency of funds, the complainant has to issue notice within 15 days. In the instant case, it was not established that such a statutory notice was sent within 15 days. (ii) The cheques were issued by the petitioner as a partner on behalf of 'V.S. Silk Centre'. In the instant case, the firm was not included as an accused. Therefore, the complaint is invalid.
5. I have carefully considered the submissions made by the counsel for the petitioner and I have made a thorough scrutiny of the records and judgments of the courts below.
6. As far as Crl.R.C. No.418 of 1997 is concerned, regarding the first point that failure in issuing notice within 15 days from the date of intimation, it was held by both the courts below that Ex.P.6, the return memo was issued on 26.12.92 and that P.W.3 the Bank Manager stated that the Memo would be sent after 10 days and as such, the notice sent on 11.1.93 was within the period of limitation. The relevant observation of the lower appellate court is as follows:-
"Admittedly, Ex.P.6 was issued on 26.12.92. The Manager of Karur Vysya Bank, Arani was examined as P.W.3. He would say in his evidence that the Memorandum will be sent after 10 days. From his evidence, it is very clear that the Ex.P.6 was received by the respondent after 10 days from 26.12.92. After receiving Ex.P.6, Ex.P.7 notice dated 11.1.93 was issued within 15 days of return of cheque. Therefore, the respondent has also observed due formalities in this case."
7. In Crl.R.C. No.431 of 1997 also, this point has been dealt with by both the courts below and it was held that the return memo was received on 1.1.93 and the notice was sent on 11.1.93 and so it is well within the period of limitation. The relevant observation of the lower appellate court is as follows:
"From the close scrutiny of Ex.P.8, it is very clear that the respondent has received Ex.P.3 only on 1.1.93. Subsequently, the respondent has issued notice Ex.P.5 dated 11.1.93 calling upon the accused to settle the amount within 15 days from the date of receipt of notice. Therefore, after receiving Ex.P.3 on 1.1.93, the respondent has issued Ex.P.5. within 15 days as contemplated under Section 138 of the Negotiable Instruments Act."
8. So, in view of the factual findings given by both the courts below in both the cases, I do not find any merit in the first contention.
9. Regarding the second contention, the learned counsel for the petitioner would submit that under Section 141 of the Negotiable Instruments Act, the firm must be made as an accused, otherwise the complaint would become invalid. As regards this point, the factual finding arrived at by both the courts below, is that the accused/petitioner, towards the discharge of his liability, issued the cheques and that unless it is established that the firm was liable to pay the amount to the complaint and towards the discharge of its liability, the firm issued the cheques, it cannot be contended that the firm also should be made as an accused.
10. On going through the evidence of witnesses, it is clear that the petitioner purchased silk on credit basis and issued cheques towards the discharge of his liability to the complainant. The learned counsel would point out that in the cheques the petitioner signed only as a partner and that therefore, it must be taken to mean that he issued the Cheques only on behalf of the firm. This argument does not appeal to me, since there is no material to show that the firm purchased silk from the complainant on credit basis. Moreover, it is pointed out by the lower appellate court that the counsel for the petitioner stated before the court that 'V.S. Silk Centre' in which the petitioner is alleged to be a partner, was not a registered one. Whatever it is unless it is established that the firm alone is liable to discharge the liability, the complainant cannot be compelled to add the firm as an accused.
11. The learned counsel pointed out the authorities in Suryanarayana v. M/s. Anchor Marine Services, 1995 (1) L.W. (Crl.) 132, Saj Flight Service (P) Ltd., v. P.T. Gopala Raja, 1996 (2) M.W.N. (Cr.) 10, Anandan and another v. Arivazhagan, and an unreported judgment dated 19.8.97 in CrI.O.P. No.4601 of 1997 of this Court, to show that the firm should necessarily be made as an accused along with partners.
12. Contrary to this proposition, this Court in N. Doraisamy and Another v. M/s. Archana Enterprises, 1995 Crl.L.J. 2306, Janarthanam, J. (as he then was) after considering the decision in, S. Krishna Moorthy v. B.S. Kesavan, 1994 M.L.J. (Cri) 147, held that the complaint against the partner alone without adding the company as an accused cannot be held to be invalid.
13. However, in the instant cases, I need not go into the question about the correctness of the above decisions, giving divergent views. Since on the facts of these cases in the instant Revisions, I do not find any merit to interfere in the findings of fact arrived at by both the courts below.
14. In the result, these revisions, which have no merit, are liable to be dismissed and accordingly, the same are dismissed.
No orders is necessary. Hence, the Revisions are disposed of accordingly.