IMPORTANT POINT
Where cheque was drawn by company and was signed by its authorized person, such authorized signatory could not be prosecuted for dishonour of cheque in his individual capacity.

N.A. Britto, J.—Heard learned Counsel on behalf of both parties.

2. Admit. by consent, heard forthwith.

3. In this petition, the petitioner who is an accused in C.C. No. 271/OA/05/B, under section 138 of the Negotiable Instruments Act. 1881 (Act. for short) assails the order of the learned Sessions Judge. Panaji upholding the order of issuing process against him by the learned J.M.F.C. for the said offence.

4. The Complainant had prosecuted the accused with the allegation that the Complainant had filed a Criminal Case bearing No. 200 of 2000 before the learned J.M.F.C. in Miraj in the State of Maharashtra against the accused and three others and the said case was settled thereafter and the accused along with the said three other persons had handed over six post-dated cheques in favour of the Complainant for a sum of Rs. 1,50,000/- each pursuant to which the said Complainant withdrew the said case and the cheque in question dated 31-12-2004 for Rs. 1,50,000/- drawn on ABN AMRO Bank, Mumbai, was presented by the Complainant for payment on Indus Ind Bank at Panaji in the State of Goa but the said cheque was dishonoured and returned unpaid with an endorsement “Cheque stop” and therefore the Complainant sent the notice dated 4-2-2005 which the accused replied, by his reply dated 23-2-2005 and therefore the Complainant filed the said complaint on

7-3-2005.

5. The cheque in question on the very face of it shows that it was issued by

M/s. Kothari Global Ltd. (VP A/C) and was signed by the accused as its authorized signatory. Learned Counsel on behalf of the petitioner/accused contends that the cheque in question was issued by the said Company which is a registered Company under the Companies Act, 1956 having its registered office at Calcutta. Learned Counsel further submits that the accused was a Director of the said Company upto

31-8-1988 when he resigned as a Director in the said Company and at the time when the cheque in question was issued the accused was the Company’s authorized signatory and in that capacity had signed the said cheque and not in his individual capacity. Learned Counsel further points out that the Complainant instead of filing the complaint against the said Company chose to file the complaint against its authorized signatory, in his personal capacity and such a complaint was not maintainable. Learned Counsel further submits, referring to section 141 of the Act, that there is no averment in the complaint to the effect that the accused was in charge of and responsible for the affairs of the said Company. Learned Counsel also submits that no notice as required under section 138(b) of the Act was given to the Company and although it was given to the accused, the accused had replied to the same denying his liability to make payment under the said cheque.

6. On the other hand, learned Senior Counsel, on behalf of the respondent No.2/Complainant contends that the accused nowhere in his reply dated

23-2-2005 had stated that the said cheque in question was not issued by him but was issued by the said Company, namely, M/s. Kothari Global Ltd. for which he was not responsible. Learned Senior Counsel further contends that the cheque was handed over to the Complainant by the accused and in case it was issued by the said Company that would be a matter which will have to be gone into at the trial and regarding which it is the accused who would be required to give evidence.

7. As already stated, the cheque in question dated 31-12-2004 for Rs. 1,50,000/- was issued on behalf of the said Company M/s. Kothari Global Ltd.(VP A/C) and was signed by the accused as its authorized signatory. At least till date no dispute has been raised that the said cheque was not handed over by the accused to the Complainant but nevertheless the fact remains that the said cheque was drawn not by the accused in his personal or individual capacity but by the said Company, namely, M/s. Kothari Global Ltd.(VP A/C).

8. One of the requirements of section 1