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16. In the instant case, the cheques in question have been marked as Exs.P1 and P2. Exs.P1 and P2 have been signed by Managing Director of the first accused. In Exs.P1 and P2, the Director of the first accused has not put his signature even though his seal has been affixed on Exs.P1 and P2. The entire argument put forth on the side of the criminal revision petitioners is based upon signature of Director not found in Exs.P1 and P2.

17. The learned counsel appearing for the revision petitioners/accused 1 to 3 has laconically contended that as per constitution of the first accused, entire money dealings should be dealt with by the Director and Managing Director and in fact, the account of the first accused in State Bank of India, Travancore, Pappanayakanpalayam Branch stands jointly in the names of Director and Managing Director. But in Exs.P1 and P2, signature of Director is not found place and the cheques in question have not been given by any of the accused in favour of the complainant and the same have been stealthily removed from the custody of the accountant of first accused and subsequently the complaint in question has been filed and since Exs.P1 and P2 are having structural defect, the same cannot be treated as bills of exchange. The Courts below without considering the contentions put forth on the side of the accused, have erroneously found that the accused have committed offence punishable under section 138 of the Negotiable Instruments Act and therefore, the findings given by the Courts below are liable to be interfered with.

27. In support of the contention put forth on the side of the revision petitioners/accused 1 to 3, the following decisions have been relied upon:

(a) In 1998 CRI.L.J.4750 (Bombay) (Babulal Nainmal Jain V. Khimji Ratanshi Dedhia and others) it is held that "if a cheque is returned on account of any structural defect in its form, want of signature, date has not been properly written, figure of the amount has been over written or erased in the drawer's name, the same will not amount to an offence punishable under section 138 of the Negotiable Instruments Act.

29. As per the decisions referred to supra, it is made clear that if any cheque is structurally defect, the same would not attract penal provision of section 138 of the Negotiable Instruments Act, even though the same has been returned by the concerned Bank. Further mere return by the concerned bank would not attract the penal provision of the said section. The Court must independently decide each and every case on the basis of its factual situation.

30. Even at the risk of repetition the Court would like to point out that in Exs.P1 and P2 the Director of the first accused has not put his signature. As per section 5 of the Negotiable Instruments Act, 1881, cheque is a bill of exchange and every bill of exchange should be signed by its maker. So far as Exs.P1 and P2 are concerned, the Managing Director as well as Director are joint makers and both of them should sign. If any one of them has not signed, the concerned cheque is having structural defect.

31. Even though Exs.P1 and P2 have been returned on the basis of registration of the First Information Report alleged to have been given by some of the accused, evidence of PW2 would reveal that in each and every cheque, issued in the name of first accused must be signed by Director and Managing Director, since both of them are having joint accounts for the first accused. In Exs.P1 and P2 signature of the Director is not found place. Therefore, Exs.P1 and P2 are having structural defect and the same cannot be construed as valid cheques and at the most, the same can be treated as inchoate instruments, since Exs.P1 and P2 are nothing but inchoate instruments, even though the same have been returned by the State Bank of Travancore Pappanayakkanpalayam Branch, Coimbatore, the same would not attract penal provision of section 138 of the Negotiable Instruments Act. Further it has already been pointed out that a cheque must be issued by its maker so as to enable drawee to encash the amount mentioned therein. In the instant case, in Exs.P1 and P2 since signature of Director is not found place, the complainant cannot encash the amount mentioned therein. Therefore, it is very clear that Exs.P1 and P2 are not valid cheques since, the same are having structural defect and at the most Exs.P1 and P2 can be construed as inchoate instruments. Since Exs.P1 and P2 are having structural defect and the same cannot be treated as valid cheques, mere returning of the same by the said State Bank of Travancore Pappanayakkanpalayam Branch, Coimbatore would not attract penal provision of Section 138 of the Negotiable Instruments Act. The Courts below have failed to look into the same.