IMPORTANT POINT
When cheque is issued by a person in his individual capacity then even if cheque was issued towards discharge of liability of a Company in which such person was the branch manager, Company could not be prosecuted as it was not the drawer.

C. Nagappan. J. - The second accused in C.C. No. 192 of 2000 has filed this petition under Section 482 of Cr. P.C. praying to call for the records in the said case and for quashing the same.

2. The facts in brief are as follows: The respondent herein pas filed a private complaint against the petitioner/second accused and the first accused for the offence under Section 138 of the Negotiable Instruments Act. The allegations in the said complaint are summarised as under. The complainant is doing a business of manufacturing and, dealing of polyester and cotton yarn. The second accused is the garment exporter and the first accused is its branch manager at Tirupur. As per order placed by the accused, the complainant supplied hosiery yarns to the accused under the invoices dated 18.7.1999 and 20.2.1999 and the total No. 192709 dated 27.3.1999 for a sum of Rs. 2.08.960. The accused instructed the complainant to present the cheque for collection on 17.9.1999. Accordingly, the complainant presented the cheque for collection on 17.9.1999 through his banker Lakshmi Vilas Bank, Tirupur. The cheque was dishonoured for the reason of insufficient funds. The complainant issued lawyer's notice on 28.9.1999 to the accused. The second accused received the notice and gave reply. The first accused has not received the said notice. The second accused in the reply have stated that they have not placed any order for hosiery yarn with the complainant and the first accused is the Assistant Executive (Production) of the second accused. Both the accused are jointly and severally liable for the offence committed by them under Sections 138 and 142 of the Negotiable Instruments Act.

3. The learned counsel for the petitioner contends that the petitioner company has not drawn any Cheque and it is not maintaining any bank account at Tirupur and the complainant has not supplied any goods under the invoices mentioned to the petitioner-company and the first accused has issued his personal cheque and 'hence the petitioner/second accused cannot be made liable and the respondent cannot maintain an action against the petitioner under Section 138 of the Negotiable Instruments Act and he relies on the Judgment of this Court, reported in Gummadi Industries Ltd., Chennai 17 and another v. Khushroo Engineer, General Manager-Finance, Zen Global Finance Ltd., Chennai 181 in which, M. Karpagavihayagam, J. has held as follows:

“30. However, it is noticed on perusal of the records that the second petitioner alone is the drawer, as he has signed the cheques in his individual capacity and not as a promoter of the first accused company. Though the cheques were issued by the second petitioner towards the discharge of the liability of the first petitioner, the first petitioner Company cannot be prosecuted as it is not the drawer.

31. Section 138 of the Act would indicate that the debt or liability towards which the cheque is issued, should be a legally enforceable debt or liability. This would have reference to the nature of the debt or liability and not to the person against whom the debt or liability would be enforced. This is clear by the use of the words "any debt or liability" which would include a cheque drawn by one person towards a legally enforceable debt or liability of another person. The significant omission of the words "of that person" after the words "any debt or liability" would indicate the intention of the Parliament.

32. In the instant case, the liability or debt was though legally enforceable against the first accused company but the cheques had been issued by the second accused in his individual capacity and as such he alone is the drawer. This position of law is already settled in K. Krishna Bai v. M/s. Arti Press, 1991 (2) MWN (Cr.) 110."

In the present case, the drawer of the cheque is the first accused and he has signed the cheque in his individual capacity and not as authorised signatory of the petitioner/second accused company.

4. The learned counsel for the