G RAJA RAM Vs. STATE OF A P

JUDGEMENT

(1.) Second respondent filed C.C.No. 252 of 2003 against the petitioners for an offence under Section 138 of the Negotiable Instruments Act (the Act) alleging, that he, as a contractor, undertook the cable laying work advertised by the petitioners, for which an amount of Rs. 1,58,776.00 was due to him, for which petitioners had issued a cheque bearing No. 683707 dated 19-04-2003 drawn on Indian Overseas Bank, Kodambakkam, Chennai to him. When he presented the said cheque for collection on 21-04-2003 in Pinakini Grameena Bank, Kavali, it was returned with an endorsement 'payment stopped by the drawer', and so he issued a statutory notice to the petitioners intimating them about the dishonour of the cheque and making demand for payment of the amount covered by the cheque, but petitioners did not make the payment, and thus they committed an offence under Section 138 of the Act. This petition is filed to quash the said complaint.

(2.) The contention of the learned counsel for petitioners is since petitioners, who are the Senior General Manager and Manager of Telecommunications Consultants India Limited (the Company), a Government of India Enterprise, did not act in their individual capacity while issuing the cheque in question and acted in their official capacity as the officers of the Company, the complaint filed against them in their individual capacity is not maintainable. His second contention is that since the cheque in question was not issued in discharge of a legally enforceable debt due to the second respondent from the petitioners, the complaint against the petitioners is liable to be quashed. His third contention is that there is no valid notice under Section 138 of the Act inasmuch as the notice is issued with a demand for payment of an amount of Rs. 1,58,776 / - after the second respondent received Rs. 39,750.00 by way of a demand draft on 25-04-2003, in full settlement of the amount due to him. His next contention is that since the cheque was not honoured not because of want of funds in the account but because of its being countermanded, no offence under Section 138 of the Act is committed by the petitioners. He placed strong reliance on M.M.T.C. Ltd. and another v. Medchal Chemicals and Pharma (P) Ltd. and another and K.R. Indira v. Dr. G. Adinarayana in support of the contentions raised by him. Heard the learned Additional Public Prosecutor.

(3.) In State of Haryana v. Bhajanlal the Supreme Court laid down the principles for quashing a complaint or FIR. The Supreme Court in State of Karnataka v. Devendrappa held that the High Court while dealing with a petition under Section 482 Cr.P.C. should not assume the role of a trial Court to find out if the evidence adduced would be sufficient to order conviction of the accused or not and should decide the case on the basis of the allegations in the complaint/FIR. In Union of India v. Prakash P. Hinduja the Supreme Court held that this Court in exercise of its power under Section 482 Cr.P.C. can quash a complaint/FIR when (i) the allegations therein if accepted to be true do not prima facie constitute any offence or make out a case against the accused, (ii) the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused, and (iii) there is an express legal bar engrafted in any of the provisions of the Code of Criminal Procedure or the Act concerned to the institution and continuance of the proceedings. In view of the law laid down by the Supreme Court, it is clear that this Court, while acting under Section 482 Cr.P.C. in a petition to quash a complaint/FIR has to take into consideration the allegations made in the complaint and the documents produced by the complainant only and is not supposed to go into the defences available to the accused. The contention that petitioners who issued the cheque in question in their official capacity, but not in their individual capacity, cannot be made liable for an offence under Section 138 of the Act, does not hold water in view of Section 141 of the Act, which lays down that when a cheque issued by or on behalf of a company is dishonoured, the persons who are responsible for the conduct of the business of the Company, as well as the company, would be liable for the offence under Section 138 of the Act. It is the petitioners that admittedly issued the dishonoured cheque in favour of the second respondent. Therefore, it is prima facie clear that they are looking after the affairs of the Company. So, they can be made liable for the offence under Section 138 of the Act. The fact that the Company is not made an accused is of little consequence, because Section 141 of the Act does not lay down that the complaint against the directors or persons running the business of a company without making the company an accused, is not maintainable. So, the complaint has a discretion to make or not to make the company an accused in the case.