B. V. RANGA RAJU, J.

( 1 ) THIS petition under Section 482 of Cr. PC has been filed by the 6th accused in CC No. 218 of 1997 on the file of the VI Metropolitan Magistrate, for Railways, Visakhapatnam for quashing the proceedings in the said case.

( 2 ) RESPONDENT No. 1 is a company wholly owned by the Government of India is the complainant in this case. There were some transactions between the complainant and Al company (M/s. Raghunath Cotton and Oil Products) as commission agent. Certain amounts were found due from the accused No. 1 company to the complainant and subject to final settlement the accused agreed to pay Rs. 135 lakhs and issued a cheque dated 6-11-1994 for Rs. 65,00,000. 00drawn on State Bank of India, Ongole Branch on the account of accused No. l company. Another cheque dated 29-11-1994 for Rs. 70 lakhs drawn on the same bank on the same account was also issued under the signature of the Managing Director of the Company who is the second accused in that CC. The complainant presented the cheques for collection in their bank, namely, State Bank of India, Ongole on 22-11 -1994. The cheques were returned on the ground that sufficient funds are not available in the accounts concerned.

( 3 ) IT is stated that these facts brought to the notice of accused 2 to 7 who are incharge of the affairs of the company relating to the transactions under reference. The accused requested the complainant to re-present the cheques with a promise that enough funds would be available in the account to honour the cheques. The complainant re-presented one of the cheques in its State Bank of India, Overseas Branch, Visakhapatnam on 1-12-1994. The said cheque was sent for collection by the said bank to the State Bank of India, Ongole Branch on which the cheque was drawn. The said bank dishonoured the cheque and transmitted the same along with memo dated 9-12-1994 mentioning the reason for dishonour as "exceeds arrangements". The complainant received this intimation on 22-12-1994. The complainant got issued a lawyer s notice dated 23-12-1994 setting out the above facts and required Al and A2 to make the payments within 15 days from the date of service of notice. Accused Nos. 1 and 2 received notice but did not choose to make any payments within the period of 15 days. On the other hand, the complainant received a contentious reply with false allegations. Hence, the complaint for the offence under Section 138 of the Negotiable Instruments Act was filed with a liberty to take such a civil and other criminal actions as are warranted. Thus, it would be seen that the complaint is in respect of dishonour of cheque of Rs. 65,00,000. 00.

( 4 ) THE learned Counsel for the petitioner Sri Tamada Gopala Krishna seeks quashing of these proceedings on various grounds.

( 5 ) FIRSTLY, it is contended that the petitioner herein is accused No. 6 in the complaint and admittedly notice as required under Section 138 of Negotiable Instruments Act was issued to the company and its Managing Director i. e. , accused Nos. 1 and 2 respectively and no notice was issued separately to the petitioner herein and as such requirement under Section 138 of Negotiable Instruments Act has not been complied with.

( 6 ) THE learned Counsel for the respondent, Sri P. Srinivas Reddy, contends that the petitioner herein, accused No. 6 is being sought to be made liable for the offence under Section 138 of the Negotiable Instruments Act in view of the provisions in Section 141 of the Negotiable Instruments Act inasmuch as he as an officer of the company was incharge of and was responsible to the conduct of the business of the company. This contention on behalf of the learned Counsel for the petitioner is based on under Section 138 (b) of the Negotiable Instruments Act which reads as follows:"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, wit

Click Here to Read the rest of this document