The Criminal O.P. has arisen in this way:
The petitioners wee dealing in development of hybrid coconut seedlings. The petitioners were getting hybrid seed nuts from the respondent during 1995-96. On 5.9.1996, the parties finalised their accounts, according to which, the petitioners had to pay Rs. 3,35,014/-. The petitioners had paid Rs. 1,65,000/- by way of Demand Drafts. The petitioners had to pay only Rs. 99,014/-. The respondent was in possession of seven cheques issued on 20.1.1997, 20.2.1997, 20.3.1997, 20.4.1997, 20.5.1997, 20.6.1997 each for the value of Rs. 30,000/- and the seventh cheque dated 20.7.1997 of the value of Rs. 39,014/-. The respondent had filed a complaint in C.C. No. 1036 of 1997 on the file of the Judicial Magistrate, Uthamapalayam, under Section 138 of the Negotiable Instruments Act, alleging that the cheques were presented in the bank, but were returned, regarding which, he had issued a notice to the petitioner herein to make payment and in spite of the notice, the petitioners had not made payments. The petitioners seek to quash the proceedings before the learned Judicial Magistrate on the following grounds:
(i) The complaint is based on seven cheques. But the seventh cheque has not been deposited into and returned by the bank;
(ii) The firm has not been shown to be represented by the Managing Partner, nor the partners have been made as parties;
(iii) The cheques have been signed by two persons and one of them had not been added;
(iv) Only three offences can be combined in a single complaint. Combining of six offences in a single complaint vitiated the trial;
(v) The balance of Rs. 99,014/- by way of two Demand Drafts were given to the respondent herein in person, but they were refused by the respondent with a mala fide intention; the complaint is aimed only to harass the petitioners herein;
(vi) The respondent as complainant had issued statutory notice on 29.7.1997. He had issued a second notice on 10.9.1997. It is the second notice, which gives rise to a fresh cause of action, and therefore, without even waiting for fifteen days for payment, the complaint preferred is premature; and
(vii) The learned Judicial Magistrate had not applied his mind while taking cognizance of the complaint.
2. Heard both the sides. To constitute an offence under Section 138 of the Negotiable Instruments Act, the following ingredients have to be fulfilled:
(i) Cheque should have been issued for the discharge, in whole or part, of any debt or other liability;
(ii) The cheque should have been presented within the period of six months or within the period of its validity; whichever is earlier;
(iii) The payee or the holder in due course should have issued a notice in writing to the drawer within fifteen days of the receipt of information by him from the bank regarding the return of the cheque as unpaid;
(iv) After the receipt of the said notice by the payee or the holder in due course, the drawer should have failed to pay the cheque amount within fifteen days of the receipt of the said notice; and
(v) On non-payment of the amount due on the dishonoured cheque within fifteen days of the receipt of the notice by the drawer, the complaint should have been filed within one month from the date of expiry of the grace time of fifteen days, before a Metropolitan Magistrate or not below the rank of a Judicial Magistrate of the First class.
3. It would be useful to refer to the case of the respondent-complainant. According to him, he had transactions with the petitioners herein during 1995-96. According to him, the petitioners have issued seven cheques dated 20.01.1997 to 20.07.1997. The respondent-complainant presented the cheques dated 20.01.1997, 20.2.1997, 20.03.1997, 20.04.1997, 20.05.1997 and 20.06.1997 to his bank, i.e., Bank of Baroda, Kamaiah Goundanpatty. The realised amount is to be credited in Account No. 1080. But, on 10.07.1997, the cheques were returned "account blocked". On 29.07.1997, the respondent-complainant gave a notice to the petitioners herein demanding payment. The petitioners acknowledged the notice on 30.07.1997. The petitioners herein ought to have made payment within fifteen days, i.e., on or before 14.08.1997, but they failed to make payment and therefore, the respondent herein/complainant preferred the complaint before the learned Judicial Magistrate on 12.09.1997 within a period of one month from the date of cause of action as contemplated under Section 142 of the Negotiable Instruments Act read with Section 138 of the Negotiable Instruments Act. In the complaint, the respondent herein had clearly stated that out of seven cheques issued, he had presented only six cheques in the bank on 10.7.1997 and the cheques were returned on 19.7.1997. The last cheque is dated 20.7.1997. It is stated in the complaint that because the earlier cheques were returned, the last cheque dated 20.7.1997 was not presented in the bank. I do not consider the non-representation of the seventh cheque would vitiate the complaint.
4. The next contention of the petitioners herein is that the firm is not represented by its Managing Partner, nor all the partners have been made as parties. It is admitted that the first petitioner is the firm run under the name and style of 'Deejay Consultancy Services'. In the complaint, one Periyanayagam, the second petitioner herein, is shown to be representing the firm. A combined reading of Sections 26 and 27 of the Negotiable Instruments Act would show that a firm may be bound by a duly authorised agent acting on behalf of the firm. If a principal stands by and tacitly concurs in the act of the agent signing his name, he is bound just as if he had authorised the agent to do so. The authority of the agent has to be inferred from the circumstances of the case. Where a cheque issued on behalf of a firm is dishonoured and notice in terms of provision (b) of Section 138 of the Negotiable Instruments Act is issued to the firm, the firm is the drawer of the cheque and as such is liable under Section 138 of the Negotiable Instruments Act. The question whether or not the first respondent is properly represented is a question of fact which has to be gone into at the time of the trial. I consider that this question cannot be considered in a proceeding under Section 482 of the Code of Criminal Procedure, because this Court has to find out whether there is incurable defect which vitiates the trial at the threshold.
4-A. Even considering the circumstances, it should be pointed out that in all the transactions that took place between the firm and the respondent herein, the firm was represented only by the General Manager. Though in the complaint, the second petitioner herein Periyanayagam is shown as the Manager, the papers contained in the typed set filed by the petitioners herein show that Periyanayagam is the General Manager and it is the General Manager, who handles all money transactions. In the two notices issued by the respondent-complainant, Periyanayagam has been described as Manager. The reply dated 13.08.1997 was given by Periyanayagam as the General Manager. This reply notice has been issued through an Advocate. There is no mention in the reply notice about the partners, Managing Partners or the locus standi of Periyanayagam to represent the firm. It appears the second petitioner herein Periyanayagam had express or implied authority to act on behalf of the firm.
5. The learned counsel cited a decision reported inM/s. Sri Sivasakthi Industries v. M/s. Arihant Metal Corpn., 1992 (XXXVI) M.L.J. 102) .The ruling in that case does not apply to the facts of the instant case, because in that case, the question was whether a proprietary concern can be prosecuted for offence under Section 138 of the Negotiable Instruments Act.
6. The next contention of the petitioners is that the cheques have been signed by two persons, but that the other person had not been added as a party to the complainant. Even this question whether non-inclusion of the co-drawer would vitiate the trial is a matter of fact which has to be gone into if the trial is proceeded on. Further, it is left to the complainant as to who should be joined as accused and if an accused is left out, the complainant has to face the consequence at the time of the trial.
7. The next contention raised by the learned counsel for the petitioners is that as per the provisions of Section 219 of the Code of Criminal procedure, only three offences can be combined in a single complaint, but combining six offences vitiates the trial. Section 219 Cr.P.C. recites as under:
"219 Three offences of same kind within a year may be charged together.- (1) When a person is accused of more offences than one of the same kind committed within the space of twelve months from the first to the last of such offences, whether in respect of the same person or not, he may be charged with, and tried at one trial for, any number of them not exceeding three.
(2) Offences are of the same kind when they are punishable with the same amount of punishment under the same section of the Indian Penal Code or of any special or local law:
Provided that, for the purpose of this section, an offence punishable under Section 379 of the Indian Penal Code shall be deemed to be an offence of the same kind as an offence punishable, under any section of the said Code, or of any special or local law, shall be deemed to be an offence of the same kind as an attempt to commit such offence, when such an attempt is an offence."
The learned Counsel for the respondent-Complainant strongly objects that the stage of framing of charge had not been reached and the present objection is premature. According to the learned Counsel, the series of acts of issuance of six cheques are so connected and that they form one transaction, and therefore single complaint regarding all the six cheques are maintainable. In support of his contention, the learned Counsel for the respondent-Complainant cited the following authorities :-
InPopular Dyes & Chem. v. Aiswarya Chemicals, 1994 (80) Comp. Cas. 610, S. Thangamani, J. has pointed out as under:
". . . . . . It is significant to note that what section 219 of the Criminal Procedure Code contemplates is only the joinder of charges. The section itself appears under the head "joinder of charges". Only at the stage of framing of charges the requirements of Section 219 of the Criminal Procedure Code are to be considered. Evidently, Section 219 of the Criminal Procedure Code cannot stand in the way of the court taking on file the present complaint and proceeding further."
That was a case where a single complaint was preferred in respect of four cheques issued by the petitioner therein to the respondent. In that case, it has also been observed as under:
". . . . . The inclusion of four instances of dishonour of cheques in one complaint cannot be a ground to quash the same by invoking the inherent jurisdiction of this court under Section 482 of the Criminal Procedure Code. In any event this cannot be the reason to quash the entire proceedings. The very object of Section 219 is to prevent miscarriage of justice by clubbing together a number of offences and making it impossible for the accused to defend them. Quashing of the complaint for the reason urged by learned counsel for the petitioners would only lead to abuse of the process of the court."
(ii) Even in case where several offences are combined under one charge, that would only amount to misjoinder of charges. InNagindas Tarachand Kothari v. The State of Gujarat, 1986 (1) Crimes 88, the Gujarat High Court has held that misjoinder of charges is only an irregularity and not an illegality. This Court under Section 482 of Cr.P.C. cannot go into the question of irregularity.
(iii) InStalion Shox Co. v. Auto Tensions (P) Ltd., 1994 Comp. Cas. 808, when a single complaint was preferred in respect of 11 cheques, the Delhi High Court has held that the drawer cannot be prejudiced by such act.
In the instant case, though six cheques have been issued from January, 1997 to June 1997, all the cheques have been presented into the bank on one and the same date and they have been returned on one and same date, a single notice had been issued under Section 138 of the Negotiable Instruments Act. Under identical circumstances, inGovindaraj, K. v. Aswhin Barai, 1997 (II) CTC 567, S.M. Sidickk, J. has pointed out that separate acts of issuing separate cheques got merged to form a single transaction.
". . . . . 6. Even otherwise Section 220 (1) or Cr.P.C. states that if one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for every such offence. In the present cases though the giving of six cheques by the petitioner/accused to the respondent/complainant may be on different dates but all those acts of giving these cheques were merged together to form the same transaction viz., the presentation of these cheques together on one particular day as requested by the petitioner/accused herein. In other words even though different cheques were given on different dates, the presentation of all these cheques formed the same transaction on the instruction of the petitioner/accused herein given to the respondent/complainant. Further the demand was also made by the respondent/complainant on the dishonouring of the cheques by giving one lawyer's notice and not several demands made by the respondent/complainant for the payment of the dishonoured cheques. In those circumstances, I am of the view that the petitioner/accused herein may be charged and tried at one trial for several such offence because the series of acts are so inter-linked or inter-connected together so as to form the same transaction of dishonouring the cheques on a single day on the presentation of the same as requested by the petitioner/accused herein."
I am therefore convinced that in the instant case, we have not even reached the stage of considering whether the provisions of Section 219 of Cr.P.C. would apply. Even otherwise, the act of issuance of all the cheques merged into one transaction, and therefore, it cannot be said that the complaint is vitiated.
8. The next point urged by the learned Counsel for the petitioners is that the statutory notice is defective. According to the learned Counsel for the petitioners the respondent-complainant had issued statutory notice on 29.7.1997, which was acknowledged by the petitioners on 30.7.1997. The respondent has issued a second notice on 10.9.1997. As per the provisions of Section 138 of the Negotiable Instruments Act, within fifteen days of return of cheques, the payee should issue notice to the drawer giving him a grace time of fifteen days to make payment and if the payment is not made within fifteen days, then the cause of action arises from the sixteenth day. Then, as per the provision of Section 142 of the Negotiable Instruments Act, the complaint should be filed within one month from the date of the cause of action. The first notice has been issued on 29.7.1997 giving fifteen days' time to make payment. Therefore, the petitioners herein should have made payment within fifteen days, i.e., on or before 13.8.1997. The complaint has been preferred before the Magistrate on 12.9.1997. Apparently, it would appear that the provisions relating to issue of notice adumberated under Section 138 of the Negotiable Instruments Act have been followed. But the contention of the learned Counsel for the petitioners is that the respondent-complainant had issued the second notice dated 10.9.1997 and without waiting for fifteen days for payment, the complaint has been preferred on 12.9.1997, and therefore, the complaint is a premature complaint. I have carefully gone through both the notices. No way it can be said that the notice dated 10.9.1997 is a second notice. It only amends the notice dated 29.7.1997. Notice issued on 10.9.1997 recited as under:
It would thus appear that this is only an amendment to the earlier notice and it get merged with the earlier notice. Therefore, it cannot be said that the statutory notice is not a proper notice in the eye of law and that vitiates the complaint.
9. It is also contended by the learned Counsel for the petitioners that the respondent/complainant has preferred the complaint in a mala fide manner. According to the petitioners, they are due to pay only Rs. 99,014/- and they made attempt to deliver two Demand Drafts for this amount to the respondent/complainant in person, but the respondent/complainant refused to receive the same. Careful perusal of the typed act would to go show that the petitioners herein have not ventured to make such payment before 14.8.1997. Further, the question whether the petitioners herein offered money and the respondent/complainant refused to receive the same, is a question of fact which the trial Court has to decide.
10. Lastly, the learned Counsel for the petitioners submitted that the learned trial Magistrate has not applied his mind before taking cognizance of the matter and had he applied his mind, he would not have taken cognizance of the matter. I have already detailed the essential ingredients to make out offence under Section 138 of the Negotiable Instruments Act. If these ingredients are satisfied, the learned Judicial Magistrate has to take cognizance of the matter. The learned Counsel for the petitioners argues that there is difference between the amount mentioned in the demand notice and the complaint, and such difference would vitiate the trial. In support of the contention, the learned Counsel for the petitioners cited the decision reported inBalaji Seafoods Exports (India) Ltd. v. MAC Industries Ltd., 1999 (I) CTC 6.Of course, the amount demanded in the notice is Rs. 1,80,000/- made for six cheques each for Rs. 30,000/- issued on 20th of every month from January 1997 to June 1997. Another cheque bearing dated 20.7.1997 for Rs. 39,014/- is also referred to in the notice. But, that cheques is not made as a subject matter of the instant dispute. The claim in the notice is for Rs. 1,80,000/-. Though in the complaint Rs. 2,19,014/- is mentioned, the notice reads as under:
In the complaint, it has been stated as under:
It would thus appear that the case of the complainants that all the six cheques presented in the bank have been returned due to insufficiency of funds, and therefore, the petitioners have committed offence punishable under Section 138 of the Negotiable Instruments Act. In addition to whose pleading, the respondent-complainant has prayed for payment of compensation as per the provisions of Section 357 of the Code of Criminal Procedure, wherein, he has included the amount due under the seventh cheque also. The recitals in the relevant portion in the complaint are as under:
It would thus be evident that the respondent-complainant has detailed his case so far as six cheques are concerned. For the purpose of making out an offence under Section 138 of the Negotiable Instruments Act, whereas he has sought further relief of grant of compensation under Section 357 Cr.P.C. of the value of all the seven cheques. Thus, this is a case of proceeding under Section 138 of the Negotiable Instruments Act to punish the petitioners herein, if the dishonest intention is established further case of claiming payment by way of compensation.
11. InBalaji Seafoods Exports (India) Ltd. v. MAC Industries Ltd., 1999 (1) CTC 6, A. Raman, J. has observed that if there is variation in the amount mentioned in the cheque and notice, then provisions of Section 138 of the Negotiable Instruments Act will not apply. That was a case where a cheque for Rs. 35 lakhs was given as a security for certain advance received. My learned brother A. Raman, J. has held that undated cheque was given only as security and therefore, the provisions of Negotiable Instruments Act will not apply and that such a claim may show the dishonest intention of the complainant to make the best use of the document not meant for such use.
12. In the instant case, in the notice, the complainant/respondent herein has referred to the seventh cheque, i.e., cheque dated 20.7.1997 for Rs. 39,014/- and he has also not made this cheque as a subject matter of the complaint preferred by him. I feel, the decision reported inBalaji Seafoods Exports (India) Ltd. v. MAC Industries Ltd., cited supra, does not apply to the facts of the instant case.
13. Finally, a faint attempt was made by the learned Counsel for the petitioners that provisions of Section 138 of the Negotiable Instruments Act would apply only in case where the cheque is returned by the bank unpaid either because the amount of money standin
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g to the credit of that account is insufficient to honour the cheque or it exceeds the amount arranged to be paid from that account by an agreement made with bank. In other words, to constitute an offence, a cheque must be returned on the ground of insufficiency of funds or on the ground of exceeding the arrangement made with the bank. In the instant case, the cheques are returned as 'blocked account'. It should be pointed out that the petitioners had straightaway come to this Court with the quash proceedings before setting up any defence before the trial Court. InNew Narayana Transport Company v. Hanutmal Jain, 1993 MWN (Dishonour of Cheques) 144, the Andhra Pradesh High Court has observed as under: ". . . . The Bank for convenience adopts certain forms indicating the reason for which it has not honoured the cheque. The term used by the bank had no relevance if it is not honoured for one reason or the other. So the charge-sheet mentions the allegations against the accused and also the procedure to issue notice within the stipulated time. It is for the Magistrate to enquire into that case. Whether the ingredients of Section 138 of the Negotiable Instruments Act have been satisfied or not, alone had to be considered. If the accused have set up a defence and that defence requires a probe and enquiry this Court feels that it is a matter that has to be enquired into by the Magistrate and this Court is not expected to make any enquiry under Section 482 of the Criminal Procedure Code. The defence set up requires a deep probe to find out whether the cheque had not been honoured on account of not having sufficient funds or the funds are not arranged for. Whatever the reasons or terms the banks are using for non paying the cash on presentation of a cheque, ultimately it is a question of fact to find out whether there was insufficiency of funds or funds were not arranged for." With due respect, I am in agreement with this view, whether the endorsement really means insufficiency of the funds or not is a question of fact, which has to be gone into in the trial before the learned Judicial Magistrate. I am satisfied that the petitioners have not made out any case for quashing the proceedings. This Crl.O.P. is dismissed. Consequently, Crl.M.P. Nos. 4527 and 4528 of 1998 are also dismissed. Petition dismissed.