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1999 Supreme(Mad) 351
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE M. KARPAGAVINAYAGAM
N. VAIDYANATHAN DEEPIKA MILK MARKETING
Versus
DODLA DAIRY LTD.
Crl.M.P.7631 Of 1998
Decided On : 05-04-1999
A prosecution under Section 138 of the Negotiable Instruments Act against a proprietary concern represented by its proprietor is maintainable, as the proprietorship concern and the proprietor are one and the same entity.
Headnote:
NEGOTIABLE INSTRUMENTS ACT - SECTION 138 - PROPRIETARY CONCERN - PROSECUTION - MAINTAINABILITY - PROPRIETARY CONCERN AND PROPRIETOR ARE ONE AND THE SAME - PROSECUTION AGAINST PROPRIETOR REPRESENTING PROPRIETARY CONCERN OR PROPRIETARY CONCERN REPRESENTED BY PROPRIETOR IS VALID.
Fact of the Case:
The petitioners, Vaidyanathan and Deepika Milk Marketing, were accused of issuing cheques that were returned unpaid for want of funds. They filed petitions to drop the proceedings against them, arguing that the list of documents was not appended to the complaint, the resolution authorizing the complainant to file the complaint was not filed, there was no averment that the cheque was issued for the discharge of the liability, and Vaidyanathan was not the proprietor of Deepika Milk Marketing. The trial court dismissed their petitions.
Finding of the Court:
The court held that the grounds raised by the petitioners were not tenable. It found that the complaint contained the necessary averments, that Vaidyanathan could be prosecuted even if he issued the cheque for the discharge of another person's liability, and that Deepika Milk Marketing and its proprietor were one and the same entity.
Issues: 1. Whether the complaint was maintainable without the list of documents being appended to it? 2. Whether the resolution authorizing the complainant to file the complaint was necessary? 3. Whether there was an averment in the complaint that the cheque was issued for the discharge of the liability? 4. Whether Vaidyanathan could be prosecuted even if he issued the cheque for the discharge of another person's liability? 5. Whether Deepika Milk Marketing and its proprietor were one and the same entity?
Ratio Decidendi: 1. The court held that the accused is not entitled to the documents in a private complaint, but is entitled to a copy of the complaint. 2. The court held that the resolution authorizing the complainant to file the complaint was not necessary. 3. The court held that the complaint contained the necessary averment that the cheque was issued for the discharge of the liability. 4. The court held that Vaidyanathan could be prosecuted even if he issued the cheque for the discharge of another person's liability. 5. The court held that Deepika Milk Marketing and its proprietor were one and the same entity, and that the prosecution against the proprietor representing the proprietorship concern or the proprietorship concern represented by the proprietor was valid.
Final Decision: The court dismissed the petitioners' revisions and directed the trial court to proceed with the trial against them.
M. KARPAGAVINAYAGAM, J.
( 1 ) THESE revisions are being disposed of through this common order, Since, the respondent! complainant is the same in all these revisions and most of the issues are common.
( 2 ) VAIDYANATHAN, the petitioner in Cr1. RC. Nos. 1019 to 1023 of 1998 is an accused in C. C. Nos. 5604 to 5607 of 1997 on the file of IX Metropolitan Magistrate, Saidapet, Madras for an offence under Section 138 of the Negotiable Instruments Act (hereinafter referred to as the Acttt)
( 3 ) DEEPIKA Milk. Marketing represented by its Proprietrix Mrs. Revathi Vaidyanathan, the petitioner in Cr1. RC. No. 1024 of 1998 is the accused in C. C. No. 5608 of 1997 on the file of IX. Metropolitan Magistrate. Saidapet, for an offence under Section 138 of the Act.
( 4 ) THE petitioner on service of notice in the said private complaint, filed separate petition under Section 204, Cr. P. C. for dropping the said proceedings as against them before the trial Court. Those applications were dismissed by the trial Court on 11-6-1988 Being aggrieved over the said common order, the above revisions have been filed before this Court by both the petitioners.
( 5 ) THE facts could be summarised as follows-Mrs. Revathi Vaidyanathan is the Proprietrix of Deepika Milk Marketing. The complainant, the respondent herein, Dodla Daily Limited is the supplier of milk in bulk quantity. As requested by the accused, the complainant supplied bulk quantity of milk on various dates since October, 1996. Towards such supply, the petitioners owed a sum of Rs. 10, 90, 9, 10, 20. Mr. Vaidyanathan is the husband of Mrs. Revathi Vaidyanathan, the Proprietrix of Deepika Milk Marketing. Towards the discharge of the liability, Mr. Vaidyanathan issued 12 cheques totalling rupees five lakhs between 5-5-1997 and 26-5-1997 and Mrs. Revathi Vaidyanathan, as the Proprietrix of Deepika Milk Marketing, issued a cheque for rupees three lakhs dated 16-4-1997. When these cheques were presented, they were returned unpaid for want of funds. Since there was no payment towards the cheque amount even after the service of the statutory notices, six complaints were filed against the petitioners, five complaints were taken on file against the said Vaidyanathan in C. C. Nos. 5604 to 5607 and 5609 of 1997 and one complaint was taken on file against Mrs. Revathi Vaidyanathan as the Proprietrix of Deepika Milk Marketing in C. C. Nos. 5608 of 1997. The petitioners in their petitions filed before the trial Court for dropping the proceedings raised several grounds. The trial Court after hearing the counsel for the parties, dismissed the same holding that those grounds are untenable. Hence, these revisions.
( 6 ) MR. Padmanabhan, appearing for Mr. Vaidyanathan, the petitioner in Cri. R. C. Nos. 1019 to 1023 of 1998 while reiterating the grounds urged before the trial Court, would submit that the list of documents was not appended to the complaint and the same was not furnished to the accused, that the resolution authorising the complainant to file the complaint was not filed, that there is no averment in the complaint that the cheque was issued for the discharge of the liability and that Mr. Vaidyanathan is not proprietor of Deepika Milk Marketing which alone owed money to the Company.
( 7 ) MR. Ravi Anantha Padmanabhan, in reply to the submissions, would point out that most of the grounds are not factually correct.
( 8 ) AS pointed out by the counsel for the respondent, in the complaint it has been stated that the complainant was authorised by its Board of Directors to file the complaint and the cheques were issued towards the discharge of the liability. Therefore it is not proper on the part of the petitioner to raise these grounds, which are not based on the correct facts.
( 9 ) REGARDING the non - supply of the documents it is held by that Court in Ramesh v. Ramamyam that in private complaint the accused is not entitled to the documents but however, he is entitled to the copy of complain
