Friday, 15 April 2016

When complaint filed by managing director of company for dishonour of cheque is not maintainable?

 All   the   cheques   were   favouring   'M/s.Bell   Marshall   Tele
System Limited.'  The complainant's case is that M/s.Bell Marshall Tele
System Limited is a Company incorporated under the Companies Act.
Company, being a juristic person, has a separate and distinct identity,
apart from its directors.  The payee was the company.  If the complaint,
as filed, is seen, it does not appear to have been filed by the Company.
The complaint has been filed by the complainant in his name, and
though   he   has   given   his   description   as   the   'Managing   Director   of
M/s.Bell Marshall Tele System Limited', it is difficult to spell out from
the complaint, that the same had been filed by the said Company.

 In   the   introductory   part   of   the   complaint   also,   the
complainant has described himself as the complainant, and has
not described the Company as the complainant.  In paragraph 1 of
the complaint, the complainant has kept vague, as to in whose
favour the cheques were issued by the accused.  The relevant part
of the first paragraph of the complaint reads as under :
1. I say that in due consideration and against legal
enforceable liability of the sum of Rs.1,60,000/- (Rupees
One Lakh Sixty Thousand Only) accused have issued eight
cheques as under :-
Sr. Cheque Date Amount Drawn on
 in Rs.
1. 660694 10.3.2006 20,000/- HDFC Bank Ltd.
Vasai(E) Branch
2. 660695 10.2.2006 20,000/- '' ''
3. 660688 10.2.2006 20,000/- '' ''
4. 660689 10.5.2006 20,000/- '' ''
5. 660690 10.5.2006 20,000/- '' ''
6. 660691 10.4.2006 20,000/- '' ''
7. 660692 10.4.2006 20,000/- '' ''
8. 660693 10.3.2006 20,000/- '' ''

Thus,   there   is   no   mention   that   the  cheques   were   issued
favouring the Company.   This aspect, apparently, has been kept
vague by the complainant.  In the body of the complaint also, it is
not mentioned that the complaint is being filed by the Company,
and that, the defacto complainant, being its Managing Director or
an authorised representative, was filing the same on behalf of the
Company.
The learned counsel for the appellant submitted that
the   complainant's   case   may   not   be   thrown   out   on   such
technicality, and therefore, I have examined the record of the case.
I find from the demand notice that the same has been made on
behalf of the Company M/s.Bell Marshall Tele System Limited.
When the Company was aware of this position, that being payee,
the Company itself was required to file the complaint, why the
complaint was not filed in the name of the Company, is not clear.  

 It is difficult to hold that this is simply an oversight or
a mistake, and the possibility that the complainant wanted to keep
this aspect of the matter rather vague, cannot be ruled out. This is
particularly so, because, it does not appear to be the business of
the Company to advance loans on interest.  As per the case made
out in the complaint, the transaction was a loan transaction.  It is
not clear whether the Company was authorized to do the business
of advancing loan with interest.  The possibility, of the complaint
not having been filed in the name of the Company keeping this
aspect in mind, therefore, cannot be ruled out.  
 Though the entire reasoning of the learned Magistrate
cannot be accepted, in the ultimate analysis, it must be held that,
the complaint had not been filed by the payee or the holder in due
course of the cheques in question.   Section 142 of the N.I.Act
leaves  no  manner of   doubt  that  a  complaint in  respect  of   an
offence   punishable   under   Section   138   thereof,   would   be
maintainable only if it is filed by a  payee  or the  holder in due
course.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.805 OF 2009
BHUPESH RATHOD )...APPELLANT
V/s.
DAYASHANKAR PRASAD CHAURASIA & ANR.)...RESPONDENT

CORAM : ABHAY M. THIPSAY, J.
DATE : 3 rd AUGUST 2015.
Citation;2016 ALLMR(CRI)1138

1 The appellant is the original complainant.   He had
filed   a   complaint   against   respondent   no.1   herein,   alleging
commission of an offence punishable under Section 138 of the
Negotiable Instruments Act (N.I.Act hereinafter).  After holding a
trial,   the   Special   Metropolitan   Magistrate,   Mumbai,   found

respondent   no.1   not   guilty   and   passed   an   order   of   acquittal.
Being aggrieved thereby, the appellant has, after obtaining special
leave of this court, filed the present appeal praying that the order
of acquittal be set aside and respondent no.1 be convicted.
2 I have heard Mrs.Kavita Pawar, the learned counsel for
the appellant.  I have heard Mr.Amar Bhatt, the learned counsel
for respondent no.1.
3 For the sake of convenience and clarity, the appellant
shall   hereinafter   be   referred   to   as   'the   complainant'   and
respondent no.1 as 'the accused.'
4 The  accused  had  issued  eight  cheques  in  favour of
M/s.Bell Marshall Tele System Limited.   These cheques, though
were drawn on different dates, were presented for payment on
10th May 2006.  All were dishonoured.  Since, even after making a
demand, the amount of the cheques was not paid, the complaint
came to be filed.  

5 The learned counsel for the appellant took me through the
evidence adduced during the trial and the impugned judgment, and
contended   that   the   reasoning   of   the   learned   Magistrate   leading   to
acquittal cannot be accepted.  Though there is some substance in this
contention, in my opinion, the prosecution of the accused itself was
bad.   It is because, it is difficult to hold that the complaint in the
instance case had been filed by the payee or the holder in due course.
In view of Clause (a) of Section 142 of the N.I.Act, the cognizance of an
offence punishable under Section 138 of the N.I.Act can be taken only
upon a complaint made by the payee, or the holder in due course of the
cheque/s.
6 All   the   cheques   were   favouring   'M/s.Bell   Marshall   Tele
System Limited.'  The complainant's case is that M/s.Bell Marshall Tele
System Limited is a Company incorporated under the Companies Act.
Company, being a juristic person, has a separate and distinct identity,
apart from its directors.  The payee was the company.  If the complaint,
as filed, is seen, it does not appear to have been filed by the Company.
The complaint has been filed by the complainant in his name, and
though   he   has   given   his   description   as   the   'Managing   Director   of
M/s.Bell Marshall Tele System Limited', it is difficult to spell out from
the complaint, that the same had been filed by the said Company.

7 In   the   introductory   part   of   the   complaint   also,   the
complainant has described himself as the complainant, and has
not described the Company as the complainant.  In paragraph 1 of
the complaint, the complainant has kept vague, as to in whose
favour the cheques were issued by the accused.  The relevant part
of the first paragraph of the complaint reads as under :
1. I say that in due consideration and against legal
enforceable liability of the sum of Rs.1,60,000/- (Rupees
One Lakh Sixty Thousand Only) accused have issued eight
cheques as under :-
Sr. Cheque Date Amount Drawn on
 in Rs.
1. 660694 10.3.2006 20,000/- HDFC Bank Ltd.
Vasai(E) Branch
2. 660695 10.2.2006 20,000/- '' ''
3. 660688 10.2.2006 20,000/- '' ''
4. 660689 10.5.2006 20,000/- '' ''
5. 660690 10.5.2006 20,000/- '' ''
6. 660691 10.4.2006 20,000/- '' ''
7. 660692 10.4.2006 20,000/- '' ''
8. 660693 10.3.2006 20,000/- '' ''

Thus,   there   is   no   mention   that   the  cheques   were   issued
favouring the Company.   This aspect, apparently, has been kept
vague by the complainant.  In the body of the complaint also, it is
not mentioned that the complaint is being filed by the Company,
and that, the defacto complainant, being its Managing Director or
an authorised representative, was filing the same on behalf of the
Company.
8 The learned counsel for the appellant submitted that
the   complainant's   case   may   not   be   thrown   out   on   such
technicality, and therefore, I have examined the record of the case.
I find from the demand notice that the same has been made on
behalf of the Company M/s.Bell Marshall Tele System Limited.
When the Company was aware of this position, that being payee,
the Company itself was required to file the complaint, why the
complaint was not filed in the name of the Company, is not clear.  

9 It is difficult to hold that this is simply an oversight or
a mistake, and the possibility that the complainant wanted to keep
this aspect of the matter rather vague, cannot be ruled out. This is
particularly so, because, it does not appear to be the business of
the Company to advance loans on interest.  As per the case made
out in the complaint, the transaction was a loan transaction.  It is
not clear whether the Company was authorized to do the business
of advancing loan with interest.  The possibility, of the complaint
not having been filed in the name of the Company keeping this
aspect in mind, therefore, cannot be ruled out.  
10 Though the entire reasoning of the learned Magistrate
cannot be accepted, in the ultimate analysis, it must be held that,
the complaint had not been filed by the payee or the holder in due
course of the cheques in question.   Section 142 of the N.I.Act
leaves  no  manner of   doubt  that  a  complaint in  respect  of   an
offence   punishable   under   Section   138   thereof,   would   be
maintainable only if it is filed by a  payee  or the  holder in due
course.

11 In this view of the matter, I do not wish to interfere
with the finding of acquittal recorded by the learned Magistrate.
12 The Appeal is dismissed.
(ABHAY M. THIPSAY, J.)

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