BASKAR Vs. MUTHUSAMY

JUDGEMENT

(1.) BASKAR, the petitioner herein, challenging the impugned order dismissing the application filed by the petitioner before the trial court for discharge has filed this revision before this court. The petitioner is an accused in a case filed under section 138 of the Negotiable Instruments Act, 1881, in C. C. No. 97 of 1998 on the file of the Judicial Magistrate No. 1, Kallakurichi. Before the trial has commenced, the petitioner filed an application under section 204 read with section 251 of the Criminal Procedure Code to discharge him on the ground that the complaint ought to have been filed against the company only and not against the petitioner in his individual capacity, especially, when the cheque was issued on behalf of the company. This was dismissed on two grounds. Firstly, the complaint could be filed against the person who issued the cheque on behalf of the company, even without impleading the company as an accused. Secondly, the averments in the complaint would show that the complainant supplied paddy to the accused in his individual capacity and it is not mentioned in the complaint that the paddy was supplied to the company and, therefore, the complaint against the individual is maintainable. As against this order, Mr. Muralidharan, counsel for the revision petitioner in this revision, would submit that the company ought to have been made as an accused and that without impleading the company, the complaint is to be dismissed. I have carefully considered the submission and gone through the documents filed along with the revision petition. As correctly pointed out by the learned Judicial magistrate, it is mentioned in the notice as well as in the complaint that the petitioner purchased paddy on various occasions and there is a liability to the tune of Rs. 1, 95, 536 and that towards the discharge of the said liability, the accused issued the cheques which were dishonoured. Neither in the notice nor in the complaint there is any reference about the liability by the company. Therefore, it cannot be said that the complaint should have been filed against the company. Even assuming that the petitioner issued the cheques on behalf of the company, the said person alone can be made as an accused even without impleading the company as a co-accused. This is the law laid down by this court in the latest judgment in Egmore Benefit Society Ltd. v. K. Balasigamani, following the judgment of the apex court. Mr. Muralidharan, counsel for the petitioner, would cite another decision of this court in K. S. Subbaraman v. Iyyammal 1998 2 LW (Crl.)611 to show that when the cheque has been issued in the capacity as the managing director of the company, he cannot be impleaded as an accused in his individual capacity and it should be stated in the complaint that the accused issued the cheque as managing director of the company. No doubt, it is true that the reading of the complaint and the notice would reveal that there is no reference about the issuance of the cheque by the accused as managing director of the company. However, as pointed out by learned counsel for the petitioner, the copies of the cheques were produced before this court as additional documents to show that the cheques had been issued in the capacity as the managing director of the company. Therefore, according to counsel for the petitioner, the finding given by the trial court that the complaint was filed against the accused in his individual capacity and not in the capacity as the managing director of the company may not be correct. However, the question whether the cheques have been issued by the petitioner as managing director of the company or in his individual capacity will have to be gone into during the course of trial. Therefore, in view of the reasonings given in the earlier paragraphs, I do not find any merit in the submission made by counsel for the petitioner. However, regarding the fact that the capacity under which the cheques were issued by the petitioner could be decided by the trial court after affording adequate opportunity to the accused to put forth his defence. In the result, the revision is dismissed as devoid of merit. Consequently, the connected criminal miscellaneous petitions stand dismissed. .