S N MUKHERJEE Vs. NEPC MICON LIMITED

JUDGEMENT

(1.) THE accused 5 and 6 are the petitioners in this petition. THE respondent/ complainant filed a complaint against the petitioner and other accused in all 7 in number under Secs.138, 141 and 142 of Negotiable Instruments Act, 1881 as amended by Act 66 of 1988 read with Sec.200 of Criminal Procedure Code in C.C.No.1746 of 1996 on the file of the learned VII Metropolitan Magistrate, George Town, Chennai. According to the complainant/ respondent, the 1st accused in letter dated 14.12.1994 accepted an intercorporate deposit of Rs.one crore from the complainant agreeing to repay the same together with interest at 28% p.a. payable at quarterly rests within a period of 12 months. THE 1st accused requested the complainant to make the deposit for the purpose of implementing a project to manufacture Special Dead Burnt Magnesite (SDBM) and Magnesia Chroma Co-Clinker (MCC) at Bareilly with an outlay of Rs.27.50 crores. THE 1st accused also enclosed post dated cheques towards payment of interest and principal amount. As a security for the due repayment of the amounts due to the complainant, the 1st accused had handed over 6,66,650 shares. As requested by the 1st accused on 14.12.1994 the complainant placed a sum of Rs.one crore as intercorporate deposit for a period of 12 months. As the principal sum of Rs.one crore and the interest of last quarter become due on 15.12.1995 under the two cheques issued by the 1st accused bearing one Ch.No.034287 dated 15.12.1995 for Rs.5,39,000 towards interest and another Ch.No.024288 dated 15.12.1995 for Rs.one crore towards principal, the complainant sent a fax message dated 13.12.1995 to the 1st accused calling upon the 1st accused to make payment of Rs.one crore with interest due and payable by the 1st accused. After receiving the message dated 13.12.1995, the 1st accused instructed the complainant to present the cheques. Accordingly, the complainant presented the cheques on 15.12.1995 and the said two cheques were returned dishonoured by the bank on which the cheques were drawn namely State Bank of Bikaner and Jaipur, Calcutta with bank endorsements "refer to drawer" and "insufficient of funds". THErefore, the fact of dishonour was intimated to the complainant by the Bank in memo dated 16.12.1995. Since the 1st accused failed to honour the said two cheques, the complainant sent legal notice dated 6.1.1996 under registered post with acknowledgment due to the 1st accused calling upon him to pay the said sum of Rs.l,07,16,814together with interest at 28% p.a. on the said amount from 6.1.1996 till the date of payment. Although the 1st accused acknowledged the receipt of the said notice and admitted the liability and assured to make payment neither has not replied to the notice dated 6.1.1996 nor made any payment as assured. It is the said complaint which has been challenged in this petition.

(2.) MR.Natarajan, learned counsel appearing for the petitioner while challenging the complaint filed against the petitioners who were arrayed as accused 5 and 6 raised the following points: (i)" No individual notice has been issued against the petitioners who are the Executive Director and Vice President of the Company respectively; (ii)" There is no mention in the complaint as to when the notice alleged to have sent to the 1st accused company was acknowledged by the company so as to enable the company to make payment within 15 days from the date of receipt of the notices. In the absence of any mention of the date of the service of the notices on the company itself, it cannot be presumed that the offences have been committed by the petitioners who have been arrayed as accused 5 and 6 for the offence committed by the 1st accused company. Therefore, the learned counsel submitting that on both the grounds the complaint against the petitioners are liable to be quashed.

(3.) IN that view of the matter, the complaint pending against the petitioners on the file of the learned VII Metropolitan Magistrate, George Town, Chennai in C.C.No.1746 of 1996 are quashed in so far as the petitioners/ accused 5 and 6 respectively and the petition is allowed. Consequently, Crl.M.P.Nos.2779 and 2780 and 8674 of 1999 are closed.