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MADRAS HIGH COURT
A. Selvam, J.
Kavikumar Spinning Mills Pvt. Ltd —Petitioner
versus
M/s. Saravana Traders —Respondent
Crl. R.C. (MD) No. 332 of 2006
Decided on 18.9.2012
Counsel for the Parties:
For the Petitioners:Mr. N. Anantha Padmanabhan, Advocate.
For the Respondent:Mr. C. Muthu Saravanan, Advocate.
IMPORTANT POINT
Mere return by concerned bank would not attract penal provision of section 138 of Negotiable Instruments Act, 1881.
Headnote:Negotiable Instruments Act, 1881—Section 138 read with Sections 5 and 6—Criminal Procedure Code, 1973—Sections 397 and 401—Dishonour of cheque—Trial Court has found all accused guilty under section 138 of Negotiable Instruments Act, whereas, first appellate Court has found that accused 1 to 3 alone have committed offence—Cheque is nothing but a bill of exchange and same should be in writing containing an unconditional order and same should be signed by maker—One of essential ingredients of bill of exchange is that same should be signed by maker—Otherwise, a particular instrument cannot be construed as bill of exchange—Signature of Director is not found place—Every cheque must be signed by its drawer so as to enable concerned drawee to get amount mentioned therein—If drawer of cheque has not signed, concerned cheque cannot be construed as valid one—Mere return by concerned bank would not attract penal provision of section 138—Court must independently decide each and every case on the basis of its factual situation—Conviction and sentence passed by trial Court, modified by first appellate Court are liable to be interfered with—Conviction and sentence set aside. (Paras 11, 15, 21 to 26, 28, 29, 33 and 34)
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 r/w 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:
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 18.09.2000 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 Tamilnadu Mercantile Bank Limited, Sattur Branch. The complainant has deposited both the cheques in Tamilnadu 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 23.09.2000, some of the accused have met the Bank Manager, Tamilnadu 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 sections 138 r/w 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.
4. 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 second respondent to
