R NANJAN Vs. KRISHNA ELECTRICALS

JUDGEMENT

(1.) THE petitioner/accused in C.C. No. 138 of 1998 on the file of the Judicial Magistrate, Palani, has preferred the revision aggrieved against the orders passed in Crl. M.P. No. 3792 of 1998, dated February 24, 1999. THE case in brief is as follows:

(2.) THE respondent filed a complaint against the petitioner under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "NI Act"). THE petitioner/accused filed a petition under section 204 of the Criminal Procedure Code to drop the proceedings against him as there is no prima facie case against him. THE complainant has been examined and the evidence has not improved the case. Exhibit P-1, the cheque dated January 27, 1998, was not issued by the accused. THE said cheque was issued by Neelamalai Chits Private Limited, a company incorporated under the Companies Act, in which the petitioner is a director. According to the complaint and sworn statement as well as the evidence of PW-1, the company has no liability to be paid to the complainant. THEre is absolutely no statutory notice as contemplated under the Negotiable Instruments Act to the company, who is the drawer of the cheque. THE cheque in question was also not issued by the accused in his individual capacity. THE complainant can claim only the cheque amount, whereas he has claimed more amount in the legal notice dated February 25, 1998. THE respondent/complainant opposed the application and the learned magistrate dismissed the application and aggrieved against this, the present revision has been filed. Heard learned counsel for both sides,

(3.) THE analogy in the decision can be made applicable to the case on hand. Learned counsel for the respondent relied on the decision in K. Krishan Bai v. Arti Press 1991 LW Crl. 513; for the proposition that a complaint against the managing director without impleading the company is not maintainable and the proceedings can be quashed. Reliance is also placed on the decision in Bilakchand Gyanchand Co. v. A. Chinnaswami 1999 SCC Crl. 1034 that the High Court was not justified in quashing the complaint on the ground that notice was sent to the managing director at his office address since that could not mean that the notice was sent to the company itself. He also relied on Egmore Benefit Society Ltd. v. K. Balasigamani, wherein the High Court set aside the order of discharge holding that the prosecution against the partner alone without impleading the firm is valid. THE also relied on Anil Hada v. Indian Acrylic Ltd. that,