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MADRAS HIGH COURT
G.K. Ilanthiraiyan, J.
K.V. Sridhar and Anr. —Petitioners
versus
N. Krishnasamy —Respondent
Crl.O.P.(MD).Nos.1354 of 2014 and M.P.(MD).No.1 of 2014
Decided on 7.9.2018
Counsel for the Parties:
For the Petitioners:Mr. A. Jayaramachandran, Advocate
For the Respondent:Mr. D. Selvaraj, Advocate
IMPORTANT POINT
Agent cannot delegate his powers or duties to another.
Headnote:Negotiable Instruments Act, 1881—Sections 138 and 141—Criminal Procedure Code, 1973—Section 482—Dishonour of cheque—Offence against Company—Company can file complaint under Section 138 of NegotiableInstruments Act, by a duly appointed Power of Attorney Agent—An agent cannotdelegate his powers or duties to another, in whole or in part, without express authority of principal or authority derived from statute—Though it is not proper for High Court to consider defence of accused or conduct a roving enquiry in respect of merits of accusation, but if on face of document which is beyond suspicion or doubt, placed on record by accused and if it is considered that accusation against petitionerscannot stand, in such a matter, in order to prevent injustice or abuse of process, it is incumbent on High Court to look into those documents which have a bearing on the matter even at initial stage and grant relief to persons concerned by exercising jurisdiction under Section 482 of Cr.P.C.—Relief sought for in petition can very well be maintained by exercising inherent jurisdiction under Section 482 of Cr.P.C.—Criminal proceedings quashed.
Held: The alleged cheque was issued towards the payment of a sum of Rs.7,73,280/- on behalf of the firm S.S.Agency in favour of the complainant company on 21.10.2009. Therefore, at the time of purchasing the goods from the complainant company and also at the time of issuance of cheque, the accused were not partners of the S.S.Agency partnership firm. Further, it also reveals from the reply notice issued by the first accused that he categorically denied the issuance of cheque, signature of the cheque and the cheque was also not belong to the first accused account. Therefore, from the above, it is clear that the accused were not partners of the said firm and as such, they are not liable to be prosecuted on behalf of the partnership firm of S.S.Agency. In this regard, the learned counsel appearing for the petitioner would rely upon the judgment of this Court reported in (2014) 1 MLJ (Crl) 180 ? S.Rajarathinavel V. Visalatchi Enterprises.
In view of the above proposition of law laid down by the Hon’ble Apex Court followed by this Court in the above decision, the relief sought for in the petitioner can very well be maintained by exercising the inherent jurisdiction of this Court under Section 482 of Cr.P.C. Though it is not proper for this Court to consider the defence of the accused or conduct a roving enquiry in respect of merits of the accusation, but if on the face of the document which is beyond suspicion or doubt, placed on record by the accused and if it is considered that the accusation against the petitioners cannot stand, in such a matter, in order to prevent injustice or abuse of process, it is incumbent on this Court to look into those documents, which have a bearing on the matter even at the initial stage and grant relief to the persons concerned by exercising jurisdiction under Section 482 of Cr.P.C.
In view of the above discussion, this criminal original petition is allowed and the criminal proceedings in C.C.No.49 of 2010 on the file of the Judicial Magistrate No.1, Dindigul is quashed. Consequently, connected miscellaneous petition is closed. (Paras 9, 10 and 11)
Result: Criminal Original Application allowed.
G.K. Ilanthiraiyan, J.—This quash petition is filed to quash the criminal proceedings in C.C.No.49 of 2010 on the file of the Judicial Magistrate No.1, Dindigul filed for the offence under Section 138 of Negotiable Instrument Act.
2. The case of the respondent/complainant is that the complainant is a private limited company. On behalf of the company to file civil and criminal cases delegated the powers to its Managing Director Mr.Krishnasamy. To that extent, the company also passed a Board resolution. In turn, the Managing Director delegates his powers to the Accounts Manager by the power of attorney to lodge a complaint on behalf of the complainant company. The complainant’s company supplied cotton yarn to the accused M/s.S.S.Agency on credit basis. From time to time, the accused Agency used to settle the amount through cheques. While being so, from 03.04.2009 to 15.09.2009, the complainant company supplied cotton yarn to the tune of Rs.6,44,000/- from the first unit of the complainant company and for a sum of Rs.1,28,880/- from the second unit of the complainant company. IN this regard, towards repayment of the same, on 16.09.2009, the first accused issued cheque bearing No.270817 dated 21.10.2009 for a sum of Rs.7,73,280/- in favour of the complainant company. This cheque has been issued by the first accused on behalf of M/s.S.S.Agency as a partner. The second accused is also one of the partner of M/s.S.S.Agency and he knows very well about the issuance of cheque and both the partners are very much looking after the day-to-day affairs of the S.S.Agency. The said cheque was presented on 22.10.2009 and the same was returned dishonoured for the reason ‘insufficient funds’ on 26.10.2009. Thereafter, the complainant caused statutory notice to the accused dated 24.11.2009. It was duly received by the first accused on 30.11.2009 and the notice was refused by the second accused and returned the same on 26.11.2009. After receipt of the said notice, on 02.12.2009, A1 issued reply notice stating that he was not the partner of M/s.S.S.Agency and he did not purchase any cotton yarn on credit basis and he did not issue any cheque in favour of the complainant company and the said cheque is also not belong to him and he is not the signatory to the said cheque. Therefore, the complainant company filed the complaint for the offence under Section 138 of the Negotiable Instrument Act as against both the accused. The same has been taken cognizance by the learned Judicial Magistrate No.1, Dindigul in C.C.No.49 of 2010. As against which, the present quash petition filed by both the accused.
3. The learned counsel appearing for the petitioners/accused raised the following grounds for quashing the complaint.
(i) the petitioners had executed a release deed dated 01.04.2008, whereby they retired from the partnership from S.S.Agency and relinquished all their rights and liabilities in the firm in favour of their co-partner one Mr.S.Kalidass with effect from 31.03.2008. Therefore, the alleged date of purchase of cotton yarn on credit basis on behalf of S.S.Agency, the petitioners were not partners and they have noway connected with the said purchase. Further, they did not issue any cheque on behalf of the partnership firm in favour of the complainant. When the alleged cheque was issued on behalf of the partnership firm, the complainant ought to have impleaded the partnership firm as an accused. Here, the partnership firm was not added as an accused and impleaded the partners alone as an accused in the present complaint. Further, the alleged cheque was not signed and not issued by the accused in favour of the complainant and therefore, they are not liable to be prosecuted for the offence under Section 138 of the Negotiable Instrument Act.
(ii) The complainant’s company, by its Board resolution delegates its power to its Managing Director Mr.Krishnasamy to initiate criminal and civil cases on behalf of the complainant’s company. In turn, the said
