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MADRAS HIGH COURT
A. Selvam, J.
Kavikumar Spinning Mills Pvt. Ltd. through its M.D. —Petitioner
versus
Saravana Traders through its
Proprietor —Respondent
Cri R.C. (MD) No. 332 of 2006
Decided on 18.9.2012
Counsel for the Parties:
For the Petitioner:N. Anantha Padmanabhan, Advocate.
For the Respondent:C. Muthu Saravanan, Advocate.
IMPORTANT POINT
Cheque being a bill of exchange, one of its essential ingredients is that same should be signed by the maker.
Headnote:Negotiable Instruments Act, 1881—Section 138—Complaint alleging dishonour of cheque—Conviction by Trial Court—Appeal—Allowed by appellate Court partly—Appellate Court while confirming conviction of A1 to A3 acquitted A4 to A 7—Revision—Cheque being a bill of exchange same should be signed by the maker—Instantly, Managing Director and Director were joint makers but cheque in question were signed only by Managing Direcator—Cheque in question were having structural defects and same could not be construed as valid cheques and at the most same could be treated as inchoate instruments—Since cheques in question were having structural defects mere returning of same by Bank not attracted penal provision of Section 138—Courts below failed to took into the same—Conviction of accused persons could not be sustained—Revision allowed. (Paras 30 to 33)
JUDGMENT
A. Selvam, J.—Challenge in this Criminal Revision Case is against the conviction and sentence passed in C.C.No.145 of 2001 by the Judicial Magistrate No. 2. Sattur, modified in Criminal Appeal No. 128 of 2004 by the Principal District and Sessions Court, Virudhunagar District at Srivilliputhur.
2. The respondent herein as complainant has filed the complaint in question under Section 138 read with 141 of the Negotiable Instruments Act, 1881 wherein the present revision petitioners and others have been shown as accused.
3. The averments made in the complaint may be stated like thus:
(i) The complainant is a sole proprietorship through its proprietor viz. P. Arumugasamy. The complainant is a dealer in cotton and carrying on business in Sattur. The first accused is a corporate body, registered under the Companies Act and having registered office at Coimbatore. The second accused has been serving as its Managing Director. The third accused is serving as its Joint Managing Director. The fourth accused is the wife of second accused and fifth accused is the wife of third accused. The 6th and 7th accused are younger brothers of third accused and they are the other Directors of the first accused. The accused 2 to 7 as members of the Board of Directors. are responsible for day-to-day business of the first accused. The accused 2 to 7 have constituted a Board of Directors. The accused have purchased cotton from the complainant on credit basis and they are bound to give Rs. 52,69,124. The proprietor of the complainant during August 2000 has suffered a severe heart attack and admitted in a hospital. During first week of September 2000 the complainant has sent an ultimatum to all the accused to settle the entire amount within a period of 10 days. The first accused is maintaining a bank account in State Bank of Travancore. Pappanayakanpalayam Branch. Coimbatore. As per constitution of the company. the second accused alone is authorised to operate bank accounts. The accused 2 and 3 have met the complainant at Sattur on 18.9.2000 and tendered a cheque for a sum of Rs. 20,00,000. Since the complainant has expressed its displeasure through its proprietor, another cheque has been given to the complainant for a sum of Rs.23,00,000. The complainant is maintaining a bank account in Tamil Nadu Mercantile Bank Limited, Sattur Branch. The complainant has deposited both the cheques in Tamil Nadu Mercantile Bank Limited. Sattur Branch, for collection of the amounts mentioned therein. It appears that there is no sufficient funds in the bank account of the first accused to meet the cheques in question. The accused with a view to prevent the complainant from filing a complaint, have made a false complaint and the same has been registered in FIR No. 437 of 2000. On 23.9.2000, some of the accused have met the Bank Manager. Tamil Nadu Mercantile Bank, Sattur Branch and demanded the cheque in question to be handed over to them. The complainant has given a legal notice to the said bank. Since police complaint has been registered, the complainant has not been able to obtain originals of dishonoured cheques. Under the said circumstances, Xerox copies of dishonoured cheques have been filed. The accused have committed offences punishable under Section 138 read with 141 of the Negotiable Instruments Act, 1881. The complainant has given a proper legal notice and after receipt of the same, the accused have given a false reply notice. Under the said circumstances, the present complaint has been filed so as to dealt with the accused in accordance with law.
(ii) The Trial Court after considering the available evidence on record has found the accused 2 to 7 guilty under Section 138 of the Negotiable Instruments Act and sentenced each of them to undergo one year simple imprisonment and also slapped a fine of Rs. 5,000 upon each of them. The Trial Court has also found the first accused guilty under the said section and imposed a fine of Rs. 5,000 and directed the se
