ORDER: These revisions have been filed by the accused in C.C. Nos.542 and 544 of 1999 on the file of XVIII Metropolitan Magistrate, Saidapet, against the orders in the respective cases declining to discharge them of an offence under Sec. 138 of the Negotiable Instruments Act, passed in Crl.M.P.Nos.889 and 888 of 1999.

2. Heard Thiru C. Rajagopalan for the petitioner. Though notice had been served on the respondent/ complainant, there is no representation on their behalf. However, in view of the petitioner being ready, I consider it necessary to hear him and it is only when this Court feels that the order is likely to be reversed, it is necessary to hear the respondent. In view of the above, I heard the learned counsel Mr.C. Rajagopalan.

3. The prosecution case in brief is that the complainant Arjun Amravathi Chit Funds (P) Ltd., Chennai-4 represented by its Managing Director, Mr.K. Radhakrishnan, had filed a complaint against the petitioners stating that A-1 is the partner of M/s. Sathyapriya Metals and A-2 is the firm M/s. Sathyapriya Metals represented by its partner A-1, were the customer to their clients and was the successful bidder to the auction amount. According to the terms and agreement they have to pay the monthly instalments as scheduled. But however, they did not pay the said instalments. After several attempts and demands the cheques had been issued on behalf of A-2 the firm signed by partner A-1 for various amounts, to the tune of Rs. 2,10,000. It may not be necessary to go into the facts of the case as they are not being disputed or challenged now.

4. Suffice it to state that the cheques in question were dishonoured on the ground of ‘insuffiency of funds’. The memo of “Exceeds Arrangements” was received on 13.5.1998 from the complainant’s Bank and a lawyer’s notice was issued on 19.5.1998 within 15 days contemplated under Act. The accused received the notice on 29.5.98. However, they did not pay the amount and hence the complaint has been filed after waiting for 15 days grace period to enable them to pay the money. Hence, the complaint.

5. It is against this complaint, the petitioner had filed a preliminary objection before the Court below, raising various grounds. The first ground according to the learned counsel for the petitioner is that when a partnership firm is an accused, as per Sec. 141 of the Negotiable Instruments Act, the partnership firm should be the accused followed by the partners who are incharge of the business. Accordingly, his contention is that the second accused in the present case, which is a partnership firm should be shown as the first accused in the cause title and the accused shown in the cause title namely Pandi Selvam should be shown as the second accused in the complaint. I am unable to see the logic of this contention.

6. The order of the accused mentioned in the cause title in my opinion would by no stretch of imagination affect the prosecution case as such. As contemplated under Sec. 141 of the Negotiable Instruments Act, the firm and the person who is incharge, namely Pandi Selvam, who is a signatory of the cheque had been made an accused and that would suffice for the purpose of taking cognizance. Whether the firm has been arrayed as A-1 or A-2 is immaterial. So long as the firm is an accused that itself would suffice for the purpose of the Magistrate taking cognizance of the same. In a criminal case, the Seriatim in which the respective accused figures, is immaterial. What the Courts are concerned, is the averment relating to the accused. If the averment discloses the commission of offence, it would suffice for cognizance being taken. Therefore, as far as the first argument namely that the cause title is not in consonance with law does not, in my opinion appear to be sound and reasonable.

7. The second ground raised by the learned counsel is that the exact role played by the first accused has not been placed in the complaint; in other words, according to him as per Sec. 141 of the N

Click Here to Read the rest of this document