Research › Search › Judgment

Madras High Court · body

2003 DIGILAW 386 (MAD)

U. K. Rajah v. Dr. V. Ramanathan

2003-03-10

V.KANAGARAJ

body2003
Judgment :- The petitioner, who is the accused in C.C.No.1257 of 1998 on the file of the Court of XIII Metropolitan Magistrate, Saiapet, Chennai has filed the above criminal original petition praying to call for the records connected with the above said case and to quash the same. 2. Tracing the above criminal original petition, the petitioner has pleaded that he was a Former Director-in-charge of a company viz. The Sovereign Dairy Industries Limited and the respondent had lent some monies to the said company and not for him; that the respondent put pressure and forced him to give a cheque as a precautionary measure for a sum of Rs.50,000/= which the company had to pay but since the company did not pay the amount borne by the cheque, in spite of the petitioner having ceased to be a Director of the company and without informing him, the respondent had deposited the said cheque contrary to the understanding and getting it dishonoured has filed the case in C.C.No.1257 of 1998 before the XIII Metropolitan Magistrate, Saidapet and the said proceedings are pending. On such grounds, the petitioner has filed the above criminal original petition seeking the relief of quash sought for. 3. During arguments, the learned counsel appearing on behalf of the petitioner would lay stress on the points on which the above criminal original petition has been filed i.e. the cheque for the sum of Rs.50,000/= had been issued only for the debt or liability of the company as a Director from which also he has retired later and the respondent has sent it for collection contrary to the understanding as though the petitioner was personally indebted to him and the same cannot be done in law. 4. The learned counsel for the petitioner would also press into service an earlier order passed by a learned single Judge of this Court delivered in S.RAMASAMY vs. T.AYYAPPA reported in 2000 Bankmann 65 wherein the learned Judge has held: "Filing of complaint under Section 138 of Negotiable Instruments Act impleading signatory of cheque which was issued on behalf of company or firm without impleading company or firm is against law and is liable to be quashed." 5. On the contrary, it would not only be argued on the part of the learned counsel for the respondent that there is nothing to suggest that the cheque in issue was issued on behalf of the company for the debt or liability incurred by the company much less in the capacity of the petitioner as the Director, but the same has been issued only in his individual capacity on his personal debts incurred and therefore there is nothing wrong in registering a case against the petitioner on the bounced cheque admittedly issued by him. 6. The learned counsel for the respondent would also cite a judgment of the Honourable Apex Court delivered in I.C.D.S. LTD. vs. BEENA SHABEER AND ANOTHER reported in 2002 (3) CTC 572 wherein the Honourable Apex Court has held: "While considering the criminal liability under Section 138 of the Negotiable Instruments Act, the question of consideration of such liability from point of view of Sections 126 and 128 of Contract Act would not arise because of specific language of Section 138 of Negotiable Instrumets Act." 7. In consideration of the facts pleaded, having regard to the materials placed on record and upon hearing the learned counsel for both, this Court is of the view that the bounced cheque issued by the petitioner cannot, at this stage, be claimed to have been issued for the debtor liability incurred on behalf of the company and under pressure exerted by the respondent and since it is an admitted case that the cheque has been issued by the drawer, the presumption under Section 139 of the Negotiable Instruments Act is that the drawer has issued the cheque only for the debt or liability incurred by him and therefore on such prima facie case being made out on production of the bounced cheque before the Court, there is no second thought which could be validly entertained otherwise than what has been held by the jurisdiction Court in entertaining the complaint of the respondent and thus taking cognizance of the case on his file for a full trial to be held during which the petitioner will also have such opportunities to rebut the allegations to the effect that the cheque had been issued otherwise than what has been contemplated by the respondent in his complaint. Therefore, no pre-conclusion could be arrived at by this Court so as to cause its interference in the onward trial to be held by the trial Court as it has been sought for on the part of the petitioner in quashing the said proceedings, which is neither necessary nor warranted in the circumstances of the case. In result, (i)there is no merit in the above criminal original petition and the same is dismissed accordingly. (ii)However, the petitioner, since being aged 60 years, this Court is of the view that the personal attendance of the petitioner shall be dispensed with by the trial Court during trial, of course, with liberty to summon the petitioner in accordance with the provisions of Section 205 Cr.P.C. if his personal attendance is absolutely required. (iii)Further, since the case is of the year 1998, this Court is of the view that a further direction to the trial Court is also necessary to conduct an early trial so as to deliver the judgment on merits and in accordance with law, however, within six months from the date of receipt of a copy of this order. Consequently, Crl.M.P.Nos.615 and 616 of 2001 are also dismissed.