Popular Dyes and Chemicals (P.) Ltd. and others vs Aiyshwarya Chemicals (No. 1)

Thangamani, J.—The petitioners are the accused in C.C. No. 3065 of 1992, on the file of the Eighteenth Metropolitan Magistrate, Saidapet,

Madras. The first accused is a private limited company while the second and the third accused are its managing directors and the joint managing

directors, respectively. The respondent herein Aiyshwarya Chemicals has preferred the complaint against the petitioners alleging that in settlement

of the dues of the first accused company, the third accused in his capacity as joint managing director, handed over a cheque for Rs. 1,55,000

dated December 15, 1992, drawn by him in favour of the complainant. When the cheque was presented for payment, it was dishonoured with an

endorsement ""insufficient funds"". Thereupon, the complainant sent a notice dated March 7, 1992, to all the three accused as contemplated u/s 138

of the Negotiable Instruments Act. The notice was served on the second accused on March 9, 1992. Notices sent to the first and the third

accused could not be served as the office of the first accused had remained closed for a good length of time. The accused have failed and

neglected to pay the amount covered by the cheque within 15 days from the date of receipt of the notice. Since accused Nos. 2 and 3 are in

charge of and responsible for the conduct of the business of the first accused company, all the three have committed an offence u/s 138 of the Act.

In this petition, the accused seek an order u/s 482 of the Criminal Procedure Code, to call for the records in C.C. No. 3065 of 1992 and quash

the same.

Learned counsel for the petitioners submits that the court below has committed an error in taking cognizance of the offence and taking the

complaint on file. The basis of the complaint is the dishonour of the cheque dated December 15, 1991, issued by the third petitioner, Sridharan.

The cheque concerned is one drawn on his personal savings bank account. It has nothing to do with the discharge of the liability due to Aiyshwarya

Chemicals by the first accused company. The cheque has been stolen from his custody and forged to the extent of Rs. 1,55,000. In this

connection, he has already lodged a complaint at Aminjikarai Police Station. The bank has also been informed of the matter. No document has

been filed along with the complaint to indicate that there was any business transaction between the complainant and the accused under which the

sum of Rs. 1,55,000 became payable. There is no proof regarding the liability for which the cheque was issued. From this contention of the

petitioners, it is evident that the complaint involves questions of fact which have to be decided only during trial. Whether the cheque was issued for

the discharge of any debt or liability, on what account of the petitioners it is drawn and whether the cheque was handed over to the complainant by

the accused or it was stolen by the former and forged are all matters which could be decided only by letting in evidence during trial. This court

cannot go into the disputed questions of fact while dealing with an application u/s 482 of the Criminal Procedure Code. Those matters are to be

proved at trial. As the apex court has pointed out in State of Haryana and others Vs. Ch. Bhajan Lal and others, , the power of quashing criminal

proceedings should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. The court will not be justified in

embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the complaint. The extraordinary or inherent

powers under this section do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice. So there is no scope for

invoking the inherent jurisdiction of this court u/s 482 of the Criminal Procedure Code for the reason stated to be attendant on the issuance of the

cheque.

The next submission of learned counsel for the petitioners is that the complaint has been preferred beyond time. The records herein disclose that

the notice contemplated u/s 138 of the Negotiable Instruments Act was served on the second accused on March 9, 1992. Under clause (c) of the

proviso to section 138, the cause of action arises when the drawer fails to make the payment on the fifteenth day of the receipt of the said notice

which falls on March 24, 1992. And the complaint is dated April 7, 1992, which is within one month of the arising of the cause of action as

provided in clause (b) of section 142 of the said Act. While so, it is evident that this contention of the petitioners is also untenable.

In the result, the petition is dismissed.