M V MUTHURAMALINGAM Vs. D NARAYANASWAMY

JUDGEMENT

(1.) ON November 4, 1991 , and on November 15, 1991 , the petitioner issued two cheques for Rs. 2, 00, 000 each drawn on the Federal Bank Limited, Anna Nagar, in favour of the complainant. The cheques were presented on December 11, 1991 , and they were dishonoured. The respondent again presented the cheques on January 18, 1992 , and they were dishonoured on January 20, 1992 , on the ground that there were no sufficient funds in the account of the drawer. ON February 5, 1992 , the respondent telegraphically called upon the petitioner to pay the amount due on the cheques. The petitioner acknowledged the receipt of the telegram on the same day, but failed to pay the cheque amount. So, the respondent preferred a private complaint in C. C. No. 1737 of 1992 in the Court of the XVIII Metropolitan Magistrate, Saidapet, Madras, which was taken on file under section 138 of the Negotiable Instruments Act. The petitioner submits that he is the chairman of. the Vellammal Educational trust. The respondent offered to sell his lands for the purpose of constructing an engineering college by the trust for a sum of Rs. 8, 65, 810. ON October 21, 199 1 , sale deed was executed in respect of an area of 135 acres. ON the date of the sale deed the petitioner paid Rs. 4, 65, 000 in cash and gave the two cheques above referred to. Subsequently, the petitioner came to know that the respondent had no title to convey the land. So the petitioner asked the respondent to return the cash of Rs. 4, 65, 000 and not to present the two cheques for payment. However, the respondent assured that he would arrange for the issue of patta in favour of the petitioner, using his influence with Government officials. For that purpose, he received an additional amount of Rs. 10, 000 from the petitioner towards expenses. But the respondent did not keep up his promise. ONly in order to prevent the petitioner from taking legal proceedings against him, he has now chosen to file the complaint. Hence, the proceedings in C. C. No. 1737 of 1992, on the file of the XVIIIth Metropolitan Magistrate, Saidapet, have to be quashed under section 482 of the Criminal Procedure Code. Learned counsel for the petitioner argues that the cheques were dishonoured on January 20, 1992, but the notice of demand was sent by the respondent only on February 5, 1992, which is after the expiry of fifteen days prescribed under proviso (b) to section 138 of the Negotiable instruments Act and so the complaint instituted on February 27, 1992, does not satisfy the requirements of that section. The act stipulates that the holder of the cheque makes a demand for the payment of money covered by the cheque by giving a notice in writing to the drawer within fifteen days of the receipt of information by him from the bank regarding the return of the cheques as unpaid. As pointed out by learned counsel for the respondent, "notice in writing" which is required under section 138 (b) of the Negotiable Instruments Act need not necessarily be only by registered post, and it can as well be by a telegram or by a letter, vide V. P. Revathi v. Asha Bagree [1991] LW (Crl.) 468 And we find from the records that on January 21, 1992, the cheques were returned to the payee unhonoured. And the required telegram has been sent on the fifteenth day which is February 5, 1992. So the notice satisfies the stipulations contained in section 138 of the negotiable Instruments Act.

(2.) THIRU Karpagavinayagam, learned counsel for the petitioner, next submits that the cheques herein have been issued by the petitioner in his capacity as the chairman of the Vellammal Educational Trust. They were also drawn on the account of the said trust with the Federal Bank limited. Whereas the complaint has been preferred against M. V. Muthuramalingam, the petitioner herein in his individual capacity. The person who has committed the offence is the chairman of the Educational Trust. Under section 138 of the Negotiable Instruments Act the dishonoured cheque should have been drawn by a person on an account maintained by him with the banker for payment of any amount of money to another person from out of that account. So the complaint could only be against the account holder. And since Vellammal trust is the account holder and not the petitioner, Muthuramalingam, this complaint is unsustainable. He also points out that a trust cannot be equated with a company registered under the Indian Companies Act. There is no other provision in the Negotiable Instruments Act akin to that of section 141 of this act under which a trustee could be made liable for the act of the trust. In jethabhai v. Bipinchandra, 1968 AIR (Guj) 183 a charge was framed under section 406 of the Indian Penal Code on the basis of the complaint that some amount was realised during the business of the firm of which the accused was the managing director. The charge-sheet was quashed for the reason that before the accounts are taken, there cannot be a criminal complaint of misappropriation of a sum admittedly received during the partnership, unless there is evidence to show that the money was specially entrusted to the applicant. But the facts in the present case and point involved are different and evidently this decision cited by the petitioner cannot help him in any manner.