P M VIJAYAKUMAR Vs. MONARA CHITS P LTD

JUDGEMENT

(1.) THIS is an application filed under Section 482 of Criminal Procedure Code to quash the proceedings in C.C.No. 1447 of 1994 pending on the file of the Metropolitan Magistrate, Egmore, Chennai.

(2.) THE complainant is one M/s. Monara Chits (P) Ltd. The case of the complainant is that the accused entered into two chit transactions and became a successful bidder in the auction held on 20.12.1990 and 30.5.1991 and he committed default in payment of subsequent instalments and when the complainant approached the accused for collection the accused issued three post dated cheques drawn on Bank of Maharashtra dated on 5.12.1993 and 6.12.1993 and 7.12.1993 for a total sum of Rs. 46,900 in discharge of the liability due by him on the two transactions to the complainant. The said cheques were presented at the Bank for collection on 9.12.1993 and they were all returned on 11.12.1993 on the ground that there were no sufficient funds in the account. Later a notice was issued by the complainant to the accused informing about the dishonouring of cheques and calling upon the accused to make payment of the amount due. The accused who received the notice did not comply with the demand nor send any reply. Therefore, the complaint was lodged under Section 138 of the Negotiable Instruments Act. The complaint has been taken on file and the sworn statement of one Muthusamy was recorded on 23.12.1993.

(3.) THE learned counsel for the respondent relied upon a decision of this Court in Sagayadurai and others v. J.D. Electronic and other , 1997 (II) CTC 478,1 am of the opinion that the said decision will not apply to the facts of this case. In that case there was not dispute about the capacity of the person who laid the complaint. Here the capacity has not been substantiated and when it is submitted that the petitioner is a company incorporated under the Companies Act, without the resolution of the board and in the absence of proof the person mentioned in the complaint had no right to maintain the complaint and therefore, the lower court was not justified in taking cognizance the complaint. Therefore, in such circumstances, I am satisfied that the proceeding is liable to be quashed.