Smt. Ramadevi Kumar vs M. Bharat Kumar and State of A.P.

Vaman Rao, J.—This petition under Sec. 482 Cr.P.C. seeking quashing of the proceedings in C.C.No.320/98 on the file of the V Metropolitan Magistrate, Vijayawada in which the petitioner as A-3, is charged u/s 138 of the Negotiable Instruments Act (in short ''the Act'').

Heard Mr.Ch.Dhanamjaya learned counsel for the petitioner and Mr.Ravi Shankar Jandhyala, learned counsel for the 1st respondent.

The complaint discloses that the petitioner herein who is A-3 is the General Manager of A-1 company and A-2 is the Managing Director of the said company. It appears that on behalf of A-1 company, it was agreed that franchise rights would be conferred on the complainant in respect of the services of the A-1 company and as a consideration, the complainant would give a sum of Rs.1 lakh to the A.1 company. But subsequently, the agreement was not acted upon and the franchise rights were not conferred on the complainant. The complainant demanded back the amount of Rs.1 lakh given by him. Thereafter, A-2 gave a cheque for Rs.1 lakh which was initially presented on 9-5-1998 but was returned on 15-5-1998. When the 3rd accused was contacted, she advised the complainant to present the cheque again that arrangements will be made for collection of the amount under the cheque. Accordingly, the complainant presented a cheque on 10-7-1998 which was returned on 16-7-1998 with a memo as ''payments stopped by the drawer''. Thereafter, the notice as required under Sec.138 of the Act was given in the name of the 1st accused on 25-7-1998 which was duly served on 28-7-1998. It also appears that another notice was also issued separately to A-3, petitioner herein, on 5.8.1998 which was served on 8-8-1998. The complaint has been filed on 12-9-1998. It is stated that in view of Sec.141 of the Act, A-1 to A-3 are liable for prosecution. Thus, it would appear that from the date of service of either notice, the complaint has been filed within the time stipulated u/s 138 of the Act. The contention of the learned counsel for the petitioner in support of his plea for quashing the proceedings is that the complaint does not disclose that the cheque was issued on behalf of the 1st accused - company. The learned counsel refers to pargraph-3 of the complaint and points out that the cheque was issued by the 2nd accused. The contention appears to be that inasmuch as the cheque was issued by A-2 in his personal capacity, the question of the company being liable for the bouncing of that cheque does not arise and further extension of this contention is that when once the company is not liable, the question of the petitioner who is described as the General Manager of the company being liable does not arise.

On the other hand learned counsel for the 1st respondent contends that a reading of the entire complaint would disclose that, though it is not specifically stated that the cheque was issued by A-2 on behalf of the 1st accused - company, but the context and the other averments in the complaint make it abundantly clear that the cheque was in fact purported to have been issued on behalf of the company.

The mere fact that the complaint mentions that the cheque was issued by A-2, this itself cannot be conclusive of the fact that the cheque was not issued on behalf of A-1 company. In fact, the averments as to the agreement between the complainant and the 1st accused - company, the breach of that agreement and subsequent issuing of the cheque would all cumulatively go to disclose that the sum and substance of the averment was that the cheque was issued on behalf of the company. Another contention raised on behalf of the learned counsel for the petitioner is that even assuming that the cheque was issued on behalf of the company, as there is no averment in the complaint, the petitioner herein is not liable by virtue of provisions of Sec.141 of the Act. However, a reading of paragraphs 4 and 5 of the complaint would disclose the complaint proceeded on the assumption that the petitioner - A-3 was in charge of the company. The following allegation in the complaint is relevant:

"On that the complainant informed to the 3rd accused as she is the in charge of 1st accused - company and by that time the second accused went to America. the third accused requested the complainant to be present (to present the cheque) second time and gave assurance for clearance"

In fact it is stated that it was on the assurance of the 3rd accused, the complainant presented the cheque for the second time. All these allegations in the complaint do go to show that the complaint was filed on the assumption that the petitioner-3rd accused was in charge and was responsible to the company. The mere absence of the exact language in Section 141 of the Act does not make any difference when substantially the basis of the complaint is that the petitioner was responsible to the company. At any rate, these are matters which have to be decided by the trial court in the light of the evidence adduced before it. Under these circumstances, I do not find any ground for invoking the inherent powers of this court under Sec.482 Cr.P.C. for quashing the proceedings.

In the result this petition is dismissed. It is now represented by the learned counsel for the petitioner that in view of the pendency of this petition, the petitioner was not attending the court and as such non-bailable warrant was issued. The N.B.W. issued against the petitioner shall not be executed. However, the petitioner shall appear before the court on or before 30-3-2000 and seek recall of N.B.W. Further, considering the circumstance that she is a woman, if a request is made on her behalf, the trial court shall dispense with her presence and permit her to be represented appropriately.