Madras High Court
Vijay Joseph Lourdraj vs M/S.Tfa Agri Initiatives Private on 7 September, 2022
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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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
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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
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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
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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
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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.
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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.
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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
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