IMPORTANT POINT
A complaint against any of the Director or person/s in-charge of the company is very much maintainable despite the fact that the company is not arrayed as an accused in an offence of dishonour of cheque.

A.S. Pachhapure, J.—The revisionist has challenged the concurrent findings of his conviction and sentence for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as “the Act” for short).

2. The facts relevant for the purpose of this revision in brief are as under:

The petitioner herein is the accused, whereas the respondent is the complainant before the Trial Court. The accused-Ajith Balse is said to be the Managing Director of the Tim Tim Far East Export Trading Company Private Limited, Patalganga, Raigad District, Maharashtra, whereas the complainant is the Managing Partner of a concern by name Yermal Fish Trading (YFT), carrying on the business of supplying fishes. There is an agreement dated 19-9-2001 between the parties, wherein the complainant has supplied beheaded and gutted “Rani fish” to the accused-company. The accused was paying the amount through telegraphic transfer and under the terms of the agreement, the complainant was to send the statement of accounts by fax for every 15 days. At the end of fishing season i.e., on 4-6-2002, the complainant sent the final statement, under which the accused was liable to pay Rs.73,24,710.00 to the complainant. The accused has called the complainant to his company on 2-8-2002 to settle the debt and at that time, the accused issued 3 cheques of the State Bank of India (1) bearing No. 511693, dated 14-8-2002 for Rs. 20 lakhs; (2) bearing No. 511694, dated 5-9-2002 for Rs. 15 lakhs; and (3) bearing No. 511695, dated 17-9-2002 for Rs.20 lakhs. The accused had undertaken to settle the balance amount of Rs. 18,24,710 during the next fishing season. Later, the complainant received a notice dated 5-8-2002 from the accused castigating false aspersions on the complaint and in fact the accused had enquired about the said letter. The accused pacified the complainant and requested to present the cheques for encashment after a week from the date of the cheques. The complainant presented the cheque bearing No. 511693, dated 14-8-2002 for Rs. 20 lakhs to the Corporation Bank and the said cheque was returned with endorsement “payment stopped” and “funds insufficient”. The complainant issued a legal notice dated 9-9-2002 by fax and also by registered post acknowledgement. There was no compliance of the demand made in the notice. Hence the complainant approached the Trial Court and submitted the complaint on these facts and requesting to initiate action against the accused for the offence punishable under Section 138 of the Act.

During the Trial, the complainant examined himself as P.W. 1 and in his evidence documents Exs. P.1 to P.151 were marked. Statements of the accused were recorded under Section 313 of the Criminal Procedure Code, 1973. He examined himself as D.W. 2 and a witness D.W. 1. In their evidence got marked the documents Exs. D. 1 to D. 7. The Trial Court after hearing Counsel for the parties and on appreciation of the material on record, convicted the accused and ordered him to pay a fine of Rs. 21,25,000, in default to undergo simple imprisonment for 6 months. An appeal against the order by the accused also came to be dismissed on merits. Aggrieved by the concurrent findings, the present revision petition has been filed.

3. I have heard the learned Counsel for the parties.

4.The validity of the orders of the Courts below were challenged on three grounds firstly, that there is no debt or liability due to the complainant, secondly, that the cheques in question were obtained by giving threat and thirdly, that the complainant has not impleaded the company as a party to the proceedings and therefore, the complaint is not maintainable in law.

5. The learned Counsel for the respondent has supported the orders passed by the Courts below.

6. So far as the agreement between the parties is concerned, the complainant has produced the copy of the agreement at Ex. P. 151. It contains the terms regarding the regular supply of behe