SURYANARAYANAN Vs. ANCHOR MARINE SERVICE

JUDGEMENT

(1.) THIS petition is filed under section 482 of the Code of Criminal Procedure to quash the proceedings against the petitioner. The respondent has filed a complaint against him and another for the offences under sections 138 and 142 of the Negotiable Instruments Act on the file of the VIIth Metropolitan Magistrate, G.T., Madras, in C.C. No. 2974 of 1994, alleging that the cheque issued by this petitioner, who signed as authorised signatory of Tajoomals Industries, was dishonoured for insufficiency of funds, and, therefore, they have committed the offences under sections 138 and 142 of the Negotiable Instruments Act.

(2.) THE petitioner has raised two contentions in this petition for quashing the proceedings against him. The first contention is that the cheque was drawn by him as authorised signatory of Tajoomals Industries but the complaint has been filed against him in his individual capacity without impleading the company and this is not in compliance with section 141 of the Negotiable Instruments Act, 1881, and, therefore, the complaint is not maintainable. The next contention is that even though the complainant, T. N. Srinivasan, has stated that he is the power of attorney of Mrs. Omana Manavalan, one of the partners of Anchor Marine Service, the power of attorney is not produced before the court, and, therefore, the complaint is not maintainable.

(3.) SO far as the first point is concerned, this court has taken a consistent view that without adding the company, the prosecution against the directors cannot be maintained. In S. Krishnamoorthy v. B. S. Kesavan [1994] 80 Comp Cas 755 ; [1994] 1 LW (Cri.) 135 (Mad) , Pratap Singh J. relying upon the decision in Krishan Bai v. Arti Press [1994] 80 Comp Cas 750 ; [1991] 1 LW (Crl.) 513 (Mad), has held that without impleading the firm, who had drawn the cheque which was dishonoured, the complaint against the partners of the firm will not be in compliance with section 141 of the Negotiable Instruments Act, and, therefore, the complaint is liable to be quashed. In the decision in Krishan Bai v. Arti Press [1994] 80 Comp Cas 750; [1991] 1 LW (Crl.) 513 (Mad) Padmini Jesudurai J. has relied upon the decision of the apex court in U. P. Pollution Control Board v. Modi Distillery [1988] 63 Comp Cas 77; AIR 1988 SC 1123. Therefore, the view of the Supreme Court has been followed by Padmini Jesudurai J. in Krishan Bai v. Arti Press [1994] 80 Comp Cas 750; [1991] 1 LW (Cri.) 513 (Mad), which was later on followed by Pratap Singh J. in S. Krishnamoorthy v. B. S. Kesavan [1994] 80 Comp Cas 755 ; [1994] 1 LW (Cri.) 135 (Mad). Subsequently, Pratap Singh J. in another decision in A. Jafferullah v. T. Stanes and Co. Ltd. has confirmed his earlier view holding that without impleading the partnership firm as one of the accused, the complaint cannot be sustained against its partners. But learned counsel appearing for the respondent refers to the view of the Kerala High Court in Alex v. Vijayan [1994] 81 Comp Cas 910; [1994] 1 Crimes 505, wherein the Kerala High Court has held that when the offence is committed under sections 138 and 141 of the Negotiable Instruments Act, proceedings can be initiated against either or both the company and the person in charge of the business of the company can be independently prosecuted without impleading the company. But the Kerala High Court has dissented from the view of this court taken in Krishan Bai v. Arti Press [1994] 80 Comp Cas 750; [1991] 1 LW (Cri.) 513 (Mad), in which the decision of the Supreme Court in Sheoratan Agarwal v. State of M.P. : [1985]1SCR719 , was followed. It is true that the apex court in Sheoratan Agarwal v. State of M.P. : [1985]1SCR719 , has held that under the Essential Commodities Act, 1955, persons or officers of the company can be separately prosecuted under section 1 or 2 of the Essential Commodities Act irrespective of whether the company itself is prosecuted or not, for the contravention of the order by the company. But, in the later decision of the apex court in U.P. Pollution Control Board v. Modi Distillery [1988] 63 Comp Cas 77; AIR 1988 SC 1123, the apex court has held that unless there was prosecution of the company, there can be no prosecution of the managing director. As the apex court has taken two different views in different times in A. Jafferullah v. T. Stanes and Co. Ltd. , Pratap Singh J. has observed that the later decision of the Supreme Court has to be followed. I respectfully agree with this view of the learned judge.