MUSTAFA SURKA Vs. JAY AMBE ENTERPRISE

JUDGEMENT

(1.) In all these matters, the common question that has been raised is Whether a complaint under section 138 of Negotiable Instruments Act, is "main tainable when the complainant receives an intimation of dishonour from the banker of the drawer to the effect that the signature of the drawer does "not tally or the remarks of the bankers are Drawers signature differs from" "the specimen signature . "

(2.) In other words, when the Negotiable Instruments Act and more particularly sec tion 138 thereof permits filing of a complaint alleging commission of offence under section 138 of N.I. Act on the ground that the dis honour of cheque is for insufficiency etc. of the funds is such a complaint tenable or the words are restrictive in nature, hence not capable of a wide meaning. Thus, as suming that the substantive provision is restrictive, yet, considering the title of the section in question, whether a complaint can be filed under section 138 even if the endorsement or bankers slip is to the afore mentioned effect.

(3.) The facts in Criminal Application No. 4434 of 2009 need be noted for the purpose of appreciating the rival contentions. The first-respondent complainant filed a com plaint before the Metropolitan Magistrate, 31st Court, Vikhroli, Mumbai being Case No. 437/SS/2009 against the petitioner, who is accused No. 4. It is alleged that the complain ant is a proprietary of M/s. Jai Ambe Enter prises, which is a proprietary concern. It is stated that the first accused is a company incorporated under the Companies Act, 1956. Accused Nos. 2 and 3 are directors and au thorised signatories of accused No. 1, whereas, accused Nos. 4, 5 and 6 are also authorised signatories. Each of these accused are responsible for the day to day affairs and management of accused No. 1. They were responsible for the day to day affairs and management when the cheques, which are subject-matter of the complaint were pre sented and returned dishonoured, so also, when the cause of action arose.