Madras High Court
Sudesh Kumar Sharma vs K.S. Selvamani And Others on 5 April, 1994
Equivalent citations: [1995]84COMPCAS806(MAD)
Author: Pratap Singh
Bench: Pratap Singh
JUDGMENT Pratap Singh, J.
1. The accused in C.C. Nos. 9, 10, 11 of 1992 and 247 of 1991 have filed these petitions under section 482 of the Code of Criminal Procedure, 1973, praying to call for the records in the said cases and for quashing the same.
2. The short facts are : In C.C. No. 9 of 1992, the respondent in Criminal O.P. No. 6661 of 1993 has filed a private complaint against the petitioners herein for the offences under section 138 of the Negotiable Instruments Act, 1881, as amended (hereinafter referred to as "the Act") and under section 420 of the Indian Penal Code. The allegations in the said complaint are briefly as follows :
3. The complainant is manufacturing a high class variety of export fabrics. The second accused is the son of the first accused. The accused purchased high class variety of export fabrics on credit basis and towards part payment of the amount due to the complainant, they handed over two cheques dated July 15, 1991, and August 15, 1991, on July 15, 1991, promising that the said cheques will be duly honoured on the respective dates. Subsequently, the accused requested the complainant to presented the cheques in the month of October, 1991. The complainant to presented the cheques for collection on October 16, 1991, and October 11, 1991, respectively. They were returned on October 29, 1991, with a memo stating, "finds not sufficient" on October 31, 1991, and the complainant issued a statutory notice calling upon the accused to make the payment within 15 days. The accursed refused to receive the said notice. The notice was returned with the connivance of the postman, even though they were residing at the same address. So, the notice must be deemed to have been served on them.
4. The person who signed and verified the complaint has been duly authorised to file the complaint. Since the accused had not the amount, the complaint has been filed.
5. The allegations in the complaints in C.C. Nos. 10 and 11 of 1992 and 247 of 1991 are similar. They were also filed for the offences under section 138 of the Act and 420 of the Indian Penal Code, in respect of the cheques concerned in those complaints.
6. Mr. V. Gopinath, learned counsel for the petitioners, would submit that the drawer of the cheques is only the second accused and the first accused is not the drawer of the cheques, and that only the drawer of the cheques can be proceeded against for the offence under section 138 of the Act. Hence, the proceedings are liable to be quashed as against the first accused. The second submission of learned counsel is that the complaints are filed by Selvamani, the manager of the respective concerns in favour of which the cheques were given. The payee of the cheques is the respective concern. The payee alone can be the complainant under section 138 of Act. In these cases, the complainant is Selvamani, manager of the concerns and hence, the complaints are liable to be quashed. Learned counsel would add that at the time of filing of the complaints, no authorisation, as has been stated in paragraph 4 of the complaint, was filed. Hence, the complaints were returned for production of authorisation. They were again presented without authorisation letters and they were again returned and only much later, they were re-presented with authorisation letters. In those circumstances, it cannot be stated that there were complaints by proper complainants and, hence, the complaints are liable to be quashed.
7. Mr. Munirathina Naidu, learned counsel appearing for the respondent, would submit that K. S. Selvamani is the power of attorney agent for the four companies on whose behalf he has filed the complaints as manager and as such, the complaints are in order. He would further submit that, according to the complaints, the second accused is the authorised signatory for Pushpanchali and the first accused is the proprietor of the company, while so, the first accused must be deemed to be the drawer of the cheques and hence he is also liable for an offence under section 138 of the Act.
8. I have carefully considered the submissions made by learned counsel on both the sides. I shall first consider the question as to whether the first accused can be proceeded against for the offence alleged. To consider this point, the relevant allegations in the complaint need be stated. In the first paragraph of the complaint, it is stated that the second accused, son of the accused, and the first accused are running the business, that the first accused is the proprietor and the second accused is the authorised signatory of Pushpanchali. In paragraph 2 of the complaint, it is stated, under particulars of the cheques, that cheques were drawn by the second accused. I shall immediately refer to section 138 of the Act which stated that where any cheque drawn by a person, on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, was dishonoured for insufficient funds or for exceeding the arrangement, the said person shall deemed to have committed an offence. In this case, the drawer of the cheque is the second accused. The first accused was the proprietor of the concerns for whose liability his son, the second accused had issued the cheque and so criminal liability cannot be fastened on the first accused. So, I am clear that the first accused cannot be made liable for an offence under section 138 of the Act in any one of these complaints. Regarding the liability of the second accused, the submission of learned counsel for the petitioners was that the complaints have not been laid by the payee or the holder in due course of the cheques and, hence, the complaints are not in order. In the complaint in C.C. No. 9 of 1992, the complainant is described as follows :
"Mr. K. S. Selvamani, s/o. K. Subramani, manager, G. D. International, Narayana Nagar, Salem 16 ...."
9. In the first paragraph it is stated that the complainant herein is the manufacturer of high class variety of export fabrics, that the accused had purchased high class variety of export fabrics from the complainant and that towards part payment cheques were issued. Similar allegations were made in other complaints. In paragraph 4 of the complaint, it is stated that the person who has signed and verified the complaint is duly authorised to file the complaint and he has got personal knowledge about the entire transaction.
10. Mr. Gopinath, learned counsel for the petitioners, would submit that in this case, the complainant is one Selvamani, the manager of G. D. International, Narayana Nagar, and that Selvamani is not the payee or holder in due course of the cheques. He would further submit that even assuming that he is the manager, no authorisation was filed at the time of presentation of the complaints.
11. Learned counsel for the respondent would submit that the complaints were returned since authorisation was not shown and that later, it was re-presented along with an authorisation letter. Learned counsel would submit that Selvamani is the power agent of all the companies and so, he is authorised to file the complaints. For two reasons, I am not prepared to take into account the power of attorney deed, said to have been executed by the proprietor of the said four companies, on whose behalf these complaints were lodged by Selvamani styling himself as "manager". The first reason is that nowhere in the complaint it is stated that he is the power of attorney of the four companies and in that capacity he is filing these complaints. In paragraph 4, it is stated that he is duly authorised to file the complaints. Learned counsel submitted that while the complaints were returned by the trial court, authorisation letters were filed and the complaints were again re-presented. Because the power deed was not referred to in the complaints and because only authorisation letters were filed while the complaints were represented, after return by the court, the power deed cannot be taken into account. When the power deed is not taken into account, the resultant position is that Selvamani had filed these complaints as manger of the four companies as a person duly authorised to file the complaints. Inasmuch as he is not the payee of the cheques, he cannot file these complaints in respect of the cheques, and he cannot file these complaints as per the provisions of the Act. If the complainant is G. D. International or other companies, represented by the manager, then it will satisfy the requirements of the Act. Section 142(a) of the Act reads as follows :
"Cognizance of offences. - Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974).
(a) no court shall take cognizance of any offence punishable under section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque";
12. Thus, a person, who is competent to file a complaint under section 138 of the Act, must be a payee or holder in due course. By no stretch of imagination, can it be stated that Selvamani, who is the manager of company, is the payee or holder in due course. Hence, I accept the submission made by learned counsel for the petitioners that the complaints are not in order and not in conformity with the provisions of the Act. Hence, they cannot be sustained and are liable to be quashed.
13. In the result, the petitions are allowed and all further proceedings in C.C. Nos. 9 to 11 of 1992 on the file of the Judicial Magistrate-II, Salem, and C.C. No. 247 of 1991 on the file of the Judicial Magistrate-I, Salem, shall stand quashed.