I DHARMAPAUL Vs. D CHANDRASEKARAN

JUDGEMENT

(1.) THIS criminal original petition is to call for records in C.C. No. 433 of 1998 pending on the file of the Judicial Magistrate No. II, Tuticorin, and quash the same.

(2.) THIS criminal original petition has arisen in this way : The respondent Chandrasekaran instituted a private complaint against the petitioner and two other persons alleging that they have committed offence under section 138 of the Negotiable Instruments Act, 1881. According to the respondent, the petitioner and one Beryl borrowed Rs. 80, 000 from the respondent on May 6, 1998, for running a company. The petitioner herein and Beryl were actively engaged in running the affairs of the company. Beryl and the petitioner are the directors of the company. After borrowing, one of the directors Beryl had issued a post-dated cheque for Rs. 80, 000 drawn on Pandiyan Grama Bank, Tuticorin. The date of the cheque is July 6, 1998. When the cheque was sent for collection on July 6, 1998, it was returned on the same date with an endorsement "funds insufficient". The respondent issued a statutory notice on July 17, 1998, calling upon the company and the directors to make payment. Beryl evaded the service. The petitioner received the notice on July 22, 1998. He sent a reply on the same date containing certain false allegations.

(3.) IN Agritech Hatcheries and Food Ltd. v. Valuable Steels INdia Ltd. 1998 1 MWN (Cr.) 99, K. Govindarajan J., had another occasion to consider the same question and reiterated that there should be specific averments against the officer of the company to attract liability under section 138 of the Negotiable INstruments Act. That was a case where the vice-president of the company was arrayed as an accused, but no averments were made in the complaint that he was in charge of and responsible for the business and day-to-day affairs of the company. The learned judge expressed the view that because a particular person happens to be the vice-president of the company, it cannot be presumed that he is at the helm of affairs of the company.