M.P.L. Mayandi Managing Director/Foreman Erode Alagumeenakshi Chit Funds (P) Ltd. vs K. Selvam

M.M. Sundresh, J.—The petitioner approach this Court with a prayer to call for the records and quash the private complaint filed by the Respondent in S.T.C. No. 819 of 2009 and S.T.C. No. 820 of 2009, on the file of Judicial Magistrate, Thiruvaiyaru.

This petitioner is the accused in S.T.C. No. 819 and 820 of 2009, for the alleged offence u/s 138 of The Negotiable Instruments Act, has filed this petition alleging that the cheques having been given on behalf of the company by the petitioner and without impleading the company as an accused the complaint has not been maintainable. It is also stated that the petitioner even assuming the Managing Partner or the Managing Director, in the absence of specific averments is that he is in charge of the day today administration of the company.

In support of his contension, the learned Counsel for the petitioner submitted that relied upon the Andhra Pradesh High Court judgment D. Chandra Reddy Vs. Gowrisetty Prabhakar and Another, .

per contra, the learned Counsel for the respondents submitted that there is no necessity to implead the company as an accused, because the company has to represented somebody and in this case, it has been represented by the petitioner. He further submitted that it is not necessary to implead the company and that the petitioner was in charge of the day to day administration of company. In support of his contension the learned Counsel relied upon the judgement of this Hon''ble Court (Bipin Mehta v. Chandra Mohan) reported in 2008(3) MLJ 48 and submitted that this petition is liable to be dismissed.

Heard, the learned Counsel for the petitioner and also the learned Counsel for the respondents.

The Hon''ble Apex Court has held in a decision Anil Hada Vs. Indian Acrylic Limited, , that the offence committed by the company is the sine qua non for convicting the other persons, and such person cannot escape penal liability simply because the company is not prosecuted and relying upon the judgement (Bipin Mehta v. Chandra Mohan) reported in 2008(3) MLJ 48 it has been held as paragraph 15 and 16 as follows:

The last but not the least reason assigned by the learned Magistrate for acquitting the accused is, the non-impleading of the partnership firm viz., Southern Well Products, on whose behalf, the accused is said to have signed the cheque, Ex.P.1. in this case. It is well settled that in a proceedings initiated in respect of the company or a firm, the company or the firm need not be impleaded and it is suffice to implead the persons, who are all responsible and incahrge of the day today affairs of the company. As far as the case in hand is concerned, the complainant has rightly impleaded the accused, who is none other than the Managing Partner of the company viz., Southern Well Products. Therefore, absolutely no prejudice is caused to the accused and there is no illegality in the proceedings initiated by the complainant against the accused.

The Hononourable Apex Court also held in a decision Anil Hada Vs. Indian Acrylic Limited, , wherein, it has been held that the offence committed by the company is the sine qua non for convicting the other persons, and such person cannot escape penal liability simply because the company is not prosecuted as a result of some legal impediment.

Considering the above said legal position, this Court is of the view that, the contention raised by the learned Counsel for the petitioner without making the company as an accused the complaint is not maintainable caanot be accepted. Insofar as the other contension of the learned Counsel for the petitioner that necessary averment required u/s 141 are not available, the said contention is also liable to be rejected. In present case on hand, the disputed cheques are signed by the petitioner. In other words the averments that a reason in charge of and control of day today administration is not required for a person who has signed the cheques. Therefore, the said contention cannot be countenanced.

Considering the fact that the complaint is of the year 2009, the learned Judicial Magistrate, Thiruvaiyaru is directed to dispose of S.T.C. No. 819 of 2009 and S.T.C. No. 820 of 2009, within a period of four months from the date of receipt of a copy of this order.

With the above direction, this Criminal Original Petitions are disposed of Consequently, connected M.P.s are closed.