The legal point established is that the debt or liability towards which a cheque is issued should be legally enforceable, and the person who draws the cheque is the one who commits the offence. Vicarious liability applies to individuals in charge of the company's conduct of business.

1. The accused in C.C.46/90 pending trial before the Judicial Magistrate, Sivakashi for an offence under S.138 of the Negotiable Instruments Act, 1881 as amended by Act 66 of 1988, on a complaint given by the respondent herein, invoices the inherent powers of this Court under S.482, Cr.P.C. to quash the above proceedings.

2. The allegation in the complaint is that, for liabilities arising out of supply of pictorial calendars by the respondent to M/s.Surya Advertising Private Limited, whose sistern concern is M/s. Mudra Graphics Private Limited, the petitioner being the Managing Director of both the concerns, representing that funds in M/s.Surya Advertising Private Limited were not sufficient and that there was sufficient funds in M/s.Mudra Graphics Private Limited, issued a cheque for Rs.20,000/- in M/s.Mudra Graphics Private Limited account.

3. The cheque when presented by the respondent through the Tamil Nadu Mercantile Bank Ltd. Sivakasi, was returned unpaid for want of funds with an endorsement by the bank "refer to drawer". The statutory notice of demand was given to the petitioner requiring him to pay the amount within 15 days of the receipt of the notice and the petitioner not having paid the amount, the complaint was filed. On receipt of the summons from the trial court, the petitioner has filed the present application to quash the above complaint.

4. Thiru V. Sairam, learned counsel for the petitioner urged two contentions in support of his prayer: (i) According to the complaint, the cheque was issued by M/s.Mudra Graphics Private Lmited which owed no debt or was under no liability to the respondent, whereas the liability for calendars supplied was that of M/s.Surya Advertising Private Limited and as such, the petitioner who is shown as the Managing Director, M/s.Surya Advertising Private Limited cannot be prosecuted.

(ii) The cheques had been issued by M/s.Mudra Graphics Private Ltd. and when the cheque is dishonoured for want of funds, the offence, if any, is committed only by M/s.Mudra Graphics Private Limited, which is not the accused in the case and hence the present petitioner cannot be prosecuted even though he had signed the cheque as Managing Director of M/s.Mudra Graphics Private Limited.

5. Meeting the above contentions, Thiru K.S. Rajagopalan, learned counsel for the respondent would contend that at this stage, this court has merely to accept the complaint as it is and find out whether an offence has been committed and in the present case, there is a specific averment in the complaint that M/s.Surya Advertising Private Limited and M/s.Mudra Graphics Private Limited aresisterconcer/isandthepetitioner is the Managing Director of both the concerns and the cheque has been issued by the petitioner from out of the account of M/s.Mudra Graphics Private Limited on the specific representations that funds in M/s.Mudra Graphics Private Limited were hot sufficient and that there was sufficient funds in M/s.Mudra Graphics Private Limited. According to the learned counsel either way, the petitioner would be liable, particularly when to the notice of demand sent after the dishonour of the cheque, the petitioner had not chosen to send even a reply or to pay the amount and as such, the complaint has to be sustained.

The question that arises for consideration is whether any one of the contentions put forward by the learned counsel for the petitioner can be accepted?

6. It is settled law that at this stage, this Court while acting under S.482, Criminal Procedure Code has to'accept the averments in the complaint as they are, without adding anything thereto or subtracting anything there from and find out, if the offence is made out against the accused. If the complaint discloses the offence against the accused and there is no legal impediment to the continuance of the proceedings, this Court cannot stifle the prosecution by quashing it at its very threshold. Every opportunity must be given to a complainant to prove his ca