Crl.O.P.No.21364 of 2022
and Crl.MP.Nos.13900 & 13901 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 07.09.2022
CORAM
THE HONOURABLE Mr.JUSTICE G.K.ILANTHIRAIYAN
Crl.O.P.No.21364 of 2022
and
Crl.MP.Nos.13900 & 13901 of 2022
Vijay Joseph Lourdraj
... Petitioner
Vs
M/s.TFA Agri Initiatives Private,
Rep. by its Director Mr.D.Sridharan,
No.1/9, 5th Cross Street,
MC Nagar, Chitlapakkam,
Chennai-600 064. ... Respondent
PRAYER: Criminal Original Petitions filed under Section 482 of Cr.P.C,
praying to call for the records in C.C.No.271 of 2019 on the file of learned
Judicial Magistrate, Fast Track Court, Alandur, Chennai to quash the same.
For Petitioner : Mr.S.Suresh
For Respondent : No Appearance
*****
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https://www.mhc.tn.gov.in/judis 8
Crl.O.P.No.21364 of 2022
and Crl.MP.Nos.13900 & 13901 of 2022
ORDER
This petition has been filed to quash the proceedings in C.C.No.271 of 2019 on the file of the learned Judicial Magistrate, Fast Track Court, Alandur, Chennai, thereby taken cognizance for the offences under Section 138 of Negotiable Instruments Act, 1881 as against this petitioner.
2. The case of the prosecution is that the petitioner is the sole accused in this case. The respondent lodged a complaint against the petitioner for the offence under Section 138 of The Negotiable Instruments Act, 1881 alleging that he was entrusted with the responsibility of total production for the period between June 2018 and March 2019. However, the petitioner failed to discharge his duties, which resulted in exorbitant delay in the production and incurring huge revenue loss. During a Board meeting, the respondent decided that due to the extraordinary loss caused by the petitioner, he shall be removed as a Director from the Company. Accordingly, he was removed as a Director of the erstwhile Company and in his personal capacity, he is solely liable to compensate for the loss incurred during the months of June 2018 to March 2019. Therefore, petitioner agreed to pay a sum of Rs.40 lakhs by two installments. He also issued a sworn affidavit admitting the default committed Page 2 of https://www.mhc.tn.gov.in/judis 8 Crl.O.P.No.21364 of 2022 and Crl.MP.Nos.13900 & 13901 of 2022 by him on 30.03.2019, affirming that he would pay a sum of Rs.40 lakhs in two installments. In order to comply the same, he issued post dated cheques dated 29.06.2019 and 30.07.2019 each for a sum of Rs.20 lakhs in favour of the respondent. Both the cheques were presented for collection and the same were returned as dishonoured for the reason "insufficient funds". Thereafter, the respondent caused legal notice dated 01.07.2019 and lodged the complaint.
3. The trial Court had taken cognizance and issued summons to the petitioner.
4. The learned counsel for the petitioner would submit that the notice issued under Section 138 (b) of The Negotiable Instruments Act,1881 is defective. Further, there is no cause of action for filing a complaint for the offence punishable under Section 138 of The Negotiable Instruments Act. He raised another ground that when the cheque was signed by the proprietor, the respondent ought to have impleaded the proprietor concerned as contemplated under Section 141 of The Negotiable Instruments Act, 1881. Without impleading the proprietor, the complaint cannot be sustained and it is liable to be quashed. The legal notice, which was issued by the respondent dated Page 3 of https://www.mhc.tn.gov.in/judis 8 Crl.O.P.No.21364 of 2022 and Crl.MP.Nos.13900 & 13901 of 2022 01.07.2019 did not contain any details of the cheques issued by the petitioner and there is no cause of action to lodge the complaint by the respondent herein.
5. In support of his contention, he relied upon the judgment of this Court in Crl.OP.No.11916 dated 29.11.2019.
6. Heard the learned counsel for the petitioner and perused the entire materials available on record.
7. The petitioner is the sole accused. The respondent lodged the complaint for the offence under Section 138 of The Negotiable Instruments Act, 1881. In order to settle the amounts for the loss caused by the petitioner in the respondent's Company, he issued two post dated cheques each for a sum of Rs.20 lakhs dated 29.06.2019 and 30.07.2019. The respondent presented the said cheque for collection on 29.06.2019 and the same was dishonoured for the reason "insufficient funds". Therefore, the respondent caused legal notice to the petitioner within a period of 15 days.
8. On perusal of the legal notice reveals that as agreed by the petitioner, he had sent two post dated cheques dated 29.06.2019 and 30.07.2019 each for a sum of Rs.20 lakhs in favour of the respondent by way of professional Page 4 of https://www.mhc.tn.gov.in/judis 8 Crl.O.P.No.21364 of 2022 and Crl.MP.Nos.13900 & 13901 of 2022 courier and the same was received on 02.07.2019. When the cheque dated 29.06.2019 for a sum of Rs.20 lakhs issued by the petitioner in favour of the respondent was presented for collection on 29.06.2019, the same was returned due to insufficiency of funds and thereby, the respondent calling upon the petitioner to pay a sum of Rs.40 lakhs within a period of 15 days. It is relevant to extract the provision under Section 138(b) of the Negotiable Instruments Act,1881 and the same reads as follows:-
"138 (b) the payee or the holder in due course of the cheque as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer of the cheque, within fifteen days of the receipt of information by him from the bank regarding the return of the cheque as unpaid;"
9. Thus, it is clear that the respondent shall make a demand for the payment of the cheque amount by giving a notice, in writing, to the drawer of the cheque, within a period of 30 days on receipt of the information received from the Bank with regard to the return of the said cheque. It does not say that the notice must contain the cheque details. In fact, the respondent caused notice, which contain the date of the cheque and presentation of the cheque. That apart, the intention of the said provision is that there should be demand Page 5 of https://www.mhc.tn.gov.in/judis 8 Crl.O.P.No.21364 of 2022 and Crl.MP.Nos.13900 & 13901 of 2022 for payment, after return of the cheque. The respondent rightly caused the notice thereby call upon the petitioner to pay the cheque amounts. Therefore, this Court finds no defect in the legal notice issued under Section 138 (b) of the Negotiable Instruments Act, 1881.
10. Insofar as the inclusion of proprietor in the complaint is concerned, the learned counsel for the petitioner relied upon the judgment of this Court in which, this Court held that the complaint lodged by the authorised signatory alone impleaded as an accused without including the proprietor concerned, whereas in the case on hand, the petitioner is the proprietor and he is only the drawer of the cheque. Therefore, the judgement relied upon by the learned counsel for the petitioner is not applicable to the case on hand. It is also made clear that the proprietor issued a cheque and the inclusion of the proprietor is not to punish him for the offence under Section 138 of The Negotiable Instruments Act, 1881. Admittedly, the petitioner is a proprietor and he is not the Director or Partner or any Company or Firm. Therefore, this Court is not inclined to quash the C.C.No.271 of 2019 on the file of the learned Judicial Magistrate, Fast Track Court, Alandur.
Page 6 of https://www.mhc.tn.gov.in/judis 8 Crl.O.P.No.21364 of 2022 and Crl.MP.Nos.13900 & 13901 of 2022
11. Accordingly, this Petition is dismissed. The trial Court is directed to dispose of C.C.No.271 of 2019 within a period of three months from the date of receipt of a copy of this order without influence of any observation made by this Court in this order. Consequently, connected miscellaneous petitions are also closed.
07.09.2022 Internet:Yes Index:Yes/no Speaking/non speaking order To The Judicial Magistrate, Fast Track Court, Alandur, Chennai.
Page 7 of https://www.mhc.tn.gov.in/judis 8 Crl.O.P.No.21364 of 2022 and Crl.MP.Nos.13900 & 13901 of 2022 G.K.ILANTHIRAIYAN. J, kmi Crl.O.P.No.21364 of 2022 and Crl.MP.Nos.13900 & 13901 of 2022 07.09.2022 Page 8 of https://www.mhc.tn.gov.in/judis 8