Complaint for offence u/s 138 for dishonor of post dated cheque issued in discharge of liability.

PRATAP SINGH J.

The accused in S.T.C. No. 945 of 1992 on the file of Judicial Magistrate No. III, Coimbatore, have filed this petition under section 482, Criminal Procedure Code, praying to call for the records in the above case and quash the same. The short facts are : The respondent has filed the private complaint against the petitioners, for offences under section 138 of the Negotiable Instruments Act, 1881 (which I shall hereafter refer to as "the Act"), the allegations in it are briefly as follows :

In respect of purchases made by the first accused from the complainant, there is an outstanding balance of Rs. 20, 87, 600 and interest thereon. Towards the said liability, the first accused issued three cheques dated December 21, 1991, December 18, 1991 and December 28, 1991, for Rs. 1 lakh, Rs. 1 lakh and Rs. 1, 50, 000 respectively, in favour of the complainant. Those cheques were signed by the second accused, as managing director of the first accused. The complainant presented the said cheques for encashment, All the three cheques were dishonoured on the ground "not arranged for". The complainant received memos of dishonour on February 4, 1992. The complainant issued a legal notice dated February 11, 1992, calling upon the accused to pay the amount of the three cheques, within 15 days of the receipt of the said notice. The first accused received notice on February 13, 1992. The notice issued to the second accused was returned with the endorsement "not claimed returned to sender". The second accused had evaded the service of the said notice. The first accused had sent a reply. The second accused is the managing director of the first accused. He is directly in charge of and responsible to the first accused company for the conduct of its business, he is the person who had signed the dishonoured cheque. Hence, the complaint.Mr. K. V. Sridharan, learned counsel appearing for the petitioners, would submit that :

(i) The list of witnesses is not given in the complaint, as enjoined by section 204(2), Criminal Procedure Code, and hence it is liable to be quashed.

(ii) The complaint is filed by the manager, representing South India Viscose Ltd., a public company and that such presentation by the manager on behalf of a public limited company, is not a valid presentation of the complaint and on that score it is liable to be quashed.

(iii) The three cheques, which are the subject-matter of this complaint, are post-dated cheques.

(iv) There is a difference with regard to the date on which the complainant got the memo of the bank informing him of the dishonour of the cheque.

I have heard Mr. T. R. Rajagopalan, learned senior counsel, on the above aspects.

I have carefully considered the submissions made by learned counsel and I shall now consider the submissions made by Mr. K.V. Sridharan in seriatim. Regarding the first submission that no list of witnesses, as enjoined by section 204, Criminal Procedure Code, is given in the complaint and hence it is liable to be quashed, I have to extract section 204(2), Criminal Procedure Code, which reads as follows:

"204. Issue of process . . .

(2) No summons or warrant shall be issued against the accused under sub-section (1) until a list of the prosecution witnesses has been filed."*

In Crl. O. P. No. 8136 of 1990, dated December 14, 1993, Justice T. S. Arunachalam had held that section 204(2) is not mandatory and failure to furnish the list cannot result in quashing of the proceeding at the threshold. In view of the above position of law, this submission will have to necessarily fall.

Regarding the second submission, in Crl. O. P. No. 8731 of 1992 and other cases in which Justice T. S. Arunachalam had rendered judgment, the learned judge had referred to Gopalakrishna Trading Co. v. D. Baskaran, in which Justice Janarthanam had held that a manager or any other person authorised by the company can represent it during the course of legal proceedings before the court and file a complaint. Justice Ja