R KANNAN Vs. KOTAK MAHINDRA FINANCE LIMITED

JUDGEMENT

(1.) THE instant criminal original petition is to quash the proceedings pending in C. C. No. 1476 of 1998 on the file of the XIII Metropolitan Magistrate, Egmore, Madras.

(2.) THIS Crl. O. P. has arisen in this way : The respondent herein preferred a private complaint alleging that Alsa Constructions and Housing Ltd., a company and its managing director, chairman and directors have committed an offence under section 138 of the Negotiable Instruments Act, 1881. According to the petitioner, the second accused Salim Pasha issued two cheques dated February 26, 1997, for Rs. 10, 00, 000 and June 14, 1997, for Rs.20, 00, 000 towards the liability of the company towards bill discounting facilities given by the complainant to the accused. In the complaint, the complainant had stated that the cheques we reissued by the second accused Salim Pasha in his capacity as managing director of the first accused company as per instructions of accused Nos. 3 to 8 herein, who are the directors and in charge of the day-to-day affairs of the first accused company. The petitioner herein is one of the directors of the company, who is arrayed as the sixth accused. He has come forward with the instant quash proceedings contending that he is not the drawer of the cheque and the complainant does not specify any involvement of the petitioner in the alleged issue of the cheques.

(3.) THE complainant states that the first accused as the company and the second accused as the chairman and authorised signatory of the first accused, the third accused as the managing director of the first accused, the fourth accused as the director of the first accused, the fifth accused as the general manager (finance) of the first accused-company, are responsible for the failure to make payment of the sums claimed under the notice and are guilty of the commission of an offence under section 138 of the Negotiable Instruments Act and are liable to be punished therefore." THE learned judge pointed out that besides stating about the position, which the accused held, it was specifically mentioned in the complaint that they were responsible for the non-payment of the cheque amount after receipt of notice within the statutory period, which alone would create the offence. THE learned judge pointed out that in the context of those allegations mentioned in the complaint, it cannot be stated that there were no averments that the offence was committed with the consent of the chairman, managing director and general manager respectively and the averments referring to their position and that they are responsible for failure to make payment of sums claimed under the notice and therefore are guilty of offence under section 138 of the Negotiable Instruments Act, would be sufficient to bring their case within the fold of section 141(2) of the Negotiable Instruments Act.