M/S Raj Television Networks Limited v. State of Kerala & Anr.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR** ## **TUESDAY, THE 1ST DAY OF JANUARY 2013/11TH POUSHA 1934** ## **Crl.MC.No. 2830 of 2012 ()** **-------------------------ST.290/2012 of JUDICIAL FIRST CLASS MAGISTRAT COURT - III, KOCHI PETITIONER(S)/ACCUSED :** **-------------------------------------** **M/S. RAJ TELEVISION NET WORKS LIMITED 32, POES ROAD, 2ND STREET, TEYNAPET, CHENNAI-600018 REPRESENTED BY ITS MANAGING DIRECTOR RAJENDHRAN MANISAMY 7AV, 5TH ADAIR ROAD, RAJANNAMALAIPURAM, CHENNAI-600028.** **BY ADV. SRI.BENNY VARGHESE** ## **RESPONDENTS/COMPLAINANT/ACCUSED NO.2 & STATE :** **---------------------------------------------------------------------------------** **1. M/S.JOY ALUKKAS TRADERS (INDIA) PVT.LTD., AGED 66 YEARS MARINE DRIVE, KOCHI-682031 REPRESENTED BY ITS CHIEF OPERATING OFFICER P.P.JOSE, S/O.PYLOTH, RESIDING AT PUDUKKADAN HOUSE CONVENT ROAD, KORATTY P.O., TRICHUR 680001** ## **2. MR.D.S.MAHARAJAN** - **S/O.DHARMALINGAM, ASST.MANAGER SALES, NO.6 REPORTER COLONY, HIGH GROUND PALAVAMKOTTAI LNE TIRUNALVELI, TAMIL NADU 627002.** **3. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA 682031.** **R1 BY ADV. SRI.AGINOV MATHAPPAN BY PUBLIC PROSECUTOR SMT. V.H. JASMINE** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 01-01-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **BP** ## **Crl.MC.No. 2830 of 2012 ()** ## **APPENDIX** ## **PETITIONER'S ANNEXURE :** **ANNEXURE A1: COPY OF THE COMPLAINT IN ST 290/2012. ANNEXURE A2: COPY OF THE CHEQUE NO.12641 DRAWN BY THE 2ND ACCUSED FROM HIS ACCOUNT. ANNEXURE A3: COPY OF THE CHEQUE RETURNED MEMO ISSUED BY THE FEDERAL BANK DATED NIL.** **ANNEXURE A4: COPY OF THE CHEQUE RETURNED MEMO ISSUED BY THE I.D.B.I. BANK DATED 20/9/2010. ANNEXURE A5: COPY OF THE LAWYER NOTICE DT 28/09/2010. ANNEXURE A6: COPY OF THE REQUEST LETTER SENT TO THE BRANCH MANAGER FEDERAL BANK CHENNAI/T NAGAR.** **ANNEXURE A7: COPY OF THE INTIMATION GIVEN BY THE BRANCH MANAGER FEDERAL BANK CHENNAI/T NAGAR.** ## **RESPONDENT'S ANNEXURE : NIL.** ## **//TRUE COPY//** ## **P.A. TO JUDGE** ## **BP** ## **`T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Criminal M.C.No.2830/2012`** **`~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 1[st]` day of January** **`, 2013`** ## **`O R D E R`** The petitioner herein is seeking to quash Annexure-A1 complaint as far as the petitioner is concerned who is arrayed as first accused in the said matter. The case is pending as S.T.No.290/12 on the file of the Judicial First Class Magistrate Court-III, Kochi alleging offences punishable under Sections 138 and 142 of the Negotiable Instruments Act. The complaint is filed by the first respondent herein. The second respondent is the second accused, who drew and issued the cheque in the above case. 2. It is submitted by the learned counsel for the petitioner that in the above case, the petitioner is in no way involved in the transaction with the first respondent, and the cheque was never issued by the petitioner company, and even if the second respondent is an employee of the petitioner-company, any transactions wherein the second respondent accused has issued cheques will not bind the company. It is also submitted that he was the employee of the company only upto 2010 and, thereafter, he has left the job also voluntarily. 3. The case pleaded in Annexure-AI is that on 18/04/2009, the accused have placed an order for 1200 grams of gold coins with the Chennai Division of the complainant and in pursuance of the same, the complainant had issued 300 gold coins of 4 grams each (total 1200 gms) **Crl.M.C No.2830/2012** ## **-:2:-** against Invoice No.SAL 7455 dated 18/04/2010. The rate agreed was ` .1,309/- per gram of gold and the purchase was for a total amount of ` .16,22,868/- [1200 grams]. The second accused issued a cheque bearing No.012641 signed by the second accused, for and on behalf of the first accused, drawn on Federal Bank Ltd., Chennai/T.Nagar Branch, dated 10/09/2010 for an amount of ` .5,22,428/- and it is stated in para.4 of the complaint Annexure-A1 that it was issued in favour of the first complainant at the office of the complainant at Ernakulam towards instalments due and inclusive of the month of September, 2010 and assuring that there would be sufficient funds to honour the same. 4. The case of the petitioner herein therefore, is that as far as the petitioner is concerned, there is no criminal liability, involving offences under Sections 138 and 142 of the Negotiable Instruments Act. The petitioner has not drawn the cheque signed by any authorised signatory and the cheque was issued, evidently, by the second respondent from his personal account which is evident from the photocopy of the cheque produced as Annexure-A2. 5. The learned counsel for the petitioner, therefore, submitted that none of the ingredients of the offences under Sections 138 and 142 are attracted here. The learned counsel submitted that Annexure-A7 certificate issued by the Branch concerned will show that in the name of the **Crl.M.C No.2830/2012** ## **-:3:-** second respondent herein, a savings account No.13860100025313 was opened and the cheque bearing No.10012641 has been issued to him. 6. Learned counsel for the first respondent submitted that prior to the issuance of the cheque, invoices have been issued by the petitioner herein and, therefore, the transaction binds the petitioner and hence, the complaint is maintainable against the petitioner. It is submitted by the learned counsel that it is not a fit case for invoking the jurisdiction under Section 482 of the Code of Criminal Procedure. 7. Learned counsel for the petitioner relied upon the decision of the Apex Court reported in _**P.J.Agro Tech Ltd. v. Water Base Ltd.**_ [2010 (4) KLT Supp. 3 (SC)]. It is a case where a cheque drawn by an employee of a company from his personal account was involved. It was held by the Apex Court that even if it is for discharging the liability of the company and its Directors, the company and its Directors cannot be made liable under Section 138 of the Negotiable Instruments Act. 8. A reading of the Judgment will show that the Apex Court, after considering the ingredients of Section 138 has held thus in para.8: “................. From a reading of the said Section, it is very clear that in order to attract the provisions thereof a cheque which is dishonoured will have to be drawn by a person on an account maintained by him with the banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part of any debt or other liability. It is only ## **Crl.M.C No.2830/2012** ## **-:4:-** such a cheque which is dishonoured which would attract the provisions of Section 138 of the above Act against the drawer of the cheque.” In para.9 of the Judgment, their Lordships, after analysing the evidence in the matter, further held that the issuance of the cheque by respondent No.11 would not be sufficient to attract the provisions of Section 138 of the Negotiable Instruments Act, 1881. The Appellant Company and its Directors cannot be made liable under Section 138 for a default committed by respondent No11. The action in respect of a criminal or a quasi-criminal provision has to be strictly construed in keeping with the provisions alleged to have been violated. 9. Herein, the cheque was issued from the personal savings bank account of the second respondent as evident from Annexure-A2 coupled with Annexure-A7 certificate by the Bank. The cheque has been signed by the second respondent in his individual capacity and there is nothing to show in Annexure-A2 that he was issuing the cheque in the name of the company. Apart from that the petitioner is a private limited company and normally, any authorised person, duly authorised by them alone can issue the cheque to bind the company. The account should be one maintained by the company. There cannot be a situation wherein the second respondent has acted on behalf of the company, in the matter of issuance ## **Crl.M.C No.2830/2012** ## **-:5:-** of the cheque Annexure-A2 herein, since Annexure-A2 does not indicate that the cheque was issued to bind the petitioner company itself. 10. Therefore, the ingredients under Section 138 of the Act are not satisfied, especially, in the light of the dictum laid down by the Apex Court in the above Judgment holding the view that the cheque issued by an employee of a company from personal account cannot bind the company even if it was for the liability of the company. 11. Herein, even going by the reading of the complaint will show that the averments are to the effect that in the course of the transaction between the first and second respondents, the cheque was issued towards part of the value of the gold, as evident from para.4 of Annexure-A1. 12. Even if the petitioner has got a case that the alleged invoice issued will bind the company, the remedy of the petitioner is elsewhere and, therefore, they cannot establish the criminal liability as far as the petitioner is concerned in the complaint now filed by invoking Sections 138 and 142 of the Negotiable Instruments Act. Learned counsel for the petitioner also relied upon the decision of a learned Single Judge in _**Varghese v. State of Kerala**_ [2009 (1) KLT 707] wherein it was held that when one is not the drawer of the cheque, he cannot be proceeded under Section 138 of the Negotiable Instruments Act. ## **Crl.M.C No.2830/2012** ## **-:6:-** 13. To bind the company in a matter like this, the cheque should be one issued by the Company itself through an authorised officer, namely, the Managing Director or any other authorised signatory. It is not discernible from the materials available in this matter or from the averments in the complaint that the cheque was issued by the petitioner. 14. In the light of the above, the criminal miscellaneous case is allowed. The proceedings as against the petitioner as per Annexure-A1 complaint is quashed. The first respondent will be at liberty to proceed against the second respondent as regards the complaint-Annexure-A1. No costs. Sd/- ``` (T.R. Ramachandran Nair, Judge.) ``` ## **`ms`**