BHARATH N SHETTY Vs. VIKRAM POLYPACKS

JUDGEMENT

(1.) In this petition, the petitioner being aggrieved by the complaint filed by the present respondent No.1 against him and respondent Nos.2 and 3 in PCR.No.10809/2008, for the offences punishable under Sections 138 and 141 of Negotiable Instruments Act, 1881 (for brevity 'the N.I.Act' for short) and the learned XVI Addl.Chief Metropolitan Magistrate, Bengaluru, taking cognizance of the said private complaint, has preferred this petition. The petitioner has prayed to quash the said complaint proceeding confining to him.

(2.) A perusal of the material placed before this Court would go to show that the present respondent No.1 - M/s.Vikram Polypacks, entered into a business agreement with the present respondent No.2 (accused No.1 - M/s.Canara Polypack Ltd.,) of which, at the relevant point of time, the present respondent No.3 and the present petitioner were the Chairman and Managing Director respectively. Under the business agreement, the complainant became the dealer, agreeing to sell the products manufactured by respondent No.1 (accused No.1-Company). According to the complainant, by virtue of the said business agreement, for dealership, a sum of '25 lakhs was also paid by it to respondent No.1 (accused No.1-Company). However, due to its failure to meet its commitment, the respondent No.2 and the Crl.P.No.3707/2012 4 present petitioner, as the Chairman and Managing Director of the said Company, could not run the respondent No.1-Company, as such, the unit was closed. According to the complainant, the accused No.1- Company was due to repay its money, towards which, a cheque bearing No.724261, dated 5.11.2007, drawn on Vijaya Bank, Vijayanagara Branch, Bengaluru, for an amount of '25,13,919/- was given by the accused No.1 -Company towards the repayment of the amount due to the complainant. The said cheque was executed by accused Nos.2 and 3 i.e., respondent No.2 and petitioner herein. According to the complainant, the said cheque when presented for clearance, was dishonoured with an endorsement "exceeds arrangement'. Therefore, after complying the legal mandate of issuance of notice to the drawer-Company and the executant of the cheque, the complainant instituted a proceeding under Section 138 of N.I.Act, by filing a private complaint under Section 200 of Code of Criminal Procedure. Aggrieved by the said act of present respondent No.1/complainant in instituting a proceeding under Section 138 of N.I.Act, the present petitioner (accused No.3) has filed the present petition.

(3.) The first contention of the learned counsel for the petitioner is that the private complaint filed by the complainant in the Court below is not maintainable in view of the fact that the complaint is filed for the offence under Section 138 of N.I.Act, but, not under Section 141 of N.I.Act. A reading of the complaint go to show that the said document, a certified copy of which is produced at Annexure-A, is shown as a complaint under Section 200 of Code of Criminal Procedure read with Section 138 of N.I.Act. In the prayer column of the said complaint, it is prayed to take cognizance of the offence committed by the accused punishable under Sections 131 and 141 of N.I.Act and punish the accused in accordance with law. Since the said complaint is filed under Section 200 of Code of Criminal Procedure and the complaint filing provision under N.I.Act being under Section 138, those two sections are quoted in the nomenclature of the complaint. However, since the complaint specifically mentions in its prayer column that the cognizance is required to be taken for the offences committed by the accused which are punishable under Sections 138 and 141 of N.I.Act, the complaint cannot be considered as not the one filed against a Company and its Director who were holding the charge as on relevant date as required under Section 141 of N.I.Act, as such, the first argument of learned counsel for the petitioner is not acceptable.