ESSEM GARMENTS Vs. D BALASUBRAMANIAM

JUDGEMENT

(1.) THE respondent in all these cases filed four separate complaints under section 138 of the Negotiable Instruments Act, 1881, alleging that accused Nos. 2 and 3 are partners of the first accused and that the accused issued a cheque and that the cheque when presented for collection was dishonoured and that after issuing statutory notice, the complaints are filed. Accused Nos. 1 and 2 filed a petition under section 245 of the Criminal Procedure Code, 1973, for discharge. THE third accused has also filed a separate petition for discharge under section 245 of the Criminal Procedure Code. In the above petition, it is contended by the third accused that he did not participate in the day-to-day affairs of the firm and that he was not in charge of the business of the firm and as such the complaint is not maintainable as against him. Accused Nos. 1 and 2 have stated in the above petition that the complainant has not averred in the complaint that the second accused was in charge of and responsible for the acts of the firm and that the complainant has demanded not only the cheque amount but he has also included other items of amount, which is not sustainable.

(2.) IT is further alleged by accused Nos. 1 and 2 that the complainant has stated that he is the proprietor and that he has not filed any document to prove the same and that the person who has filed the complaint has not filed any authorisation. On a consideration of the materials on record, the trial court dismissed all the petitions. Aggrieved against that order, these revisions are filed. C. R. C. No. 718 of 1998 relates to C. C. No. 188 of 1997 against the order passed in the discharge petition. Accused Nos. 1 and 2 have filed C. R. C. No. 718 of 1998 and third accused has filed C. R. C.No. 787 of 1998. Similarly, against the order passed in C. C. No. 241of 1997 accused Nos. 1 and 2 have filed C. R. C. No. 719 of 1998 and the third accused has filed C. R. C. No. 785 of 1998. Against the order passed in C. C. No. 243 of 1997, accused Nos. 1 and 2 have filed C. R. C. No. 720 of 1998 and the third accused has filed C. R.C. 786 of 1998. Against the order passed in C. C. No. 179 of 1997, accused Nos. 1 and 2 have filed C. R. C. No. 721 of 1998 and the third accused has filed C. R. C. No. 784 of 1998. IT is seen from the complaint, that the complaint is filed by D.Balasubra-maniam, son of Dhandapani, proprietor of the financing company. Learned counsel for the petitioner contended that according to section 142 of the Negotiable Instruments Act, no court shall take cognizance of any offence except upon a complaint in writing made by the payee or as the case may be the holder in due course of the cheque. IT is contended that in this case, the person who has signed in the complaint is not authorised to file the complaint.

(3.) AS already stated, it is incumbent upon the complainant to aver in the complaint as to why the accused should be proceeded against for any offence. Learned counsel for the petitioner relies upon the decision reported in [1998] 1 LW (Crl.) 24 wherein several judgments of the apex court are relied upon. In the above judgment, it is held thus :