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J. Sathyakumar v/s Rajesh Agarwal, The Managing Director M/s. ARSS Infrastructures Projects Ltd., Orissa

    Crl. R.C (MD) No. 315 to 316 of 2014

    Decided On, 02 March 2015

    At, Before the Madurai Bench of Madras High Court

    By, THE HONOURABLE MR. JUSTICE M. SATHYANARAYANAN

    For the Petitioner: M. Subash Babu, Advocate. For the Respondents: No Appearance.



Judgment Text

(Common Prayer: Civil Revision Case filed under Section 397 read with 401 of the Code of Criminal Procedure, to call for the records and set aside the order passed by the Judicial Magistrate No.II, (Fast Track Court at Magisterial Level), Madurai in unnumbered S.T.C.No.... of 2014, dated 12.05.2014 and allow the revisions.)

1. The Criminal Revisions Petitions are preferred against the order passed by the learned Judicial Magistrate No.II, (Fast Track Court at Magisterial Level), Madurai in unnumbered S.T.C.No. of 2014, dated 12.05.2014.

2. In these revision petitions the petitioner / complainant is one and the same person so also the respondent. All the complaints came to be filed for prosecuting the respondent for the commission of offence under Section 138 r/w 141 of Negotiable Instalments Act. Sworn statement of the complainant was recorded and the trial court on going through the contents of the private complaint and sworn statement found that the complainant is working as a civil engineering contractor of the Company viz., M/s.ARSS Infrastructures Projects Ltd., Orissa and the cheques in question have also been issued by the said company only and the statutory notices have been sent to the Managing Director of the said company Viz. Rajesh Agarwal. The trial Court also took note of the legal position under Section 141 of Negotiable Instruments Act and found that no statutory notice under Section 138 of Negotiable Instruments Act has been issued to the Company and in the absence of such a notice, no cause of action was arose to prosecute the case and citing the said reason dismissed all the complaints vide separate order dated 12.05.2014, under Section 203 of Cr.P.C., and challenging the legality of the same, the present revision petitions have been filed .

3. Mr.M.Subash Babu, the learned counsel appearing for the petitioner / complainant would submit that the statutory notices have been issued to M/s.Rajesh Agarwal in his capacity as Managing Director of M/s.ARSS Infrastructures Projects Ltd., Orissa and not in individual capacity and therefore, it should be construed as the prosecution launched against the company also and the said vital aspect have been completely overlooked by the trial Court. The learned Counsel appearing for the petitioner / complainant has also drawn the attention of this Court to the judgment in Shapoor Pallanji Mistry v. State of Tamil Nadu reported in (2015) 1 MLJ (Crl) 478).

4. The respondent has been served and his name appears in the cause list and however, there is no representation.

5. A perusal of the impugned complaint would disclose that the revision petitioner / complainant was engaged as a contractor and according to him, the Company viz., M/s.ARSS Infrastructures Projects Ltd., Orissa is due and payable some amount and the cheques in question have also been issued by the said Firm, signed by Mr.Rajesh Agarwal in the capacity as Managing Director. Unfortunately, the statutory notices have been issued to Mr.Rajesh Agarwal, the Managing Director of M/s.ARSS Infrastructures Projects Ltd., Orissa and not to M/s.ARSS Infrastructures Projects Ltd., Orissa, represented by its Managing Director. Therefore, it is to be construed that statutory notices have been issued only to the Managing Director in his individual capacity and not to the Company, which had issued the cheques. Even in the cause title and in the complaint also it is shown as Mr.Rajesh Agarwal, The Managing Director, M/s.ARSS Infrastructures Projects Ltd., Plot No.38, Sector-A, Zone-D, Manchesur, Industrial Estate, Bhuvaneshwar, Orissa – 751 010. and the company, which has issued the cheques, has not been arrayed as accused.

6. Proviso to Section 138 of Negotiable Instruments Act reads that the drawer of such cheque fail to make payment of the said amount of money to the payee or as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Section 141 of Negotiable Instruments Act speaks about the offences by companies and Section 142 deals with cognizance of the offence and as per Section 142(a), 'no court shall take cognizance of any offence punishable under Section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque. (b) such complaint is made within one month of the date on which, the cause of action arises under clause (c) of the proviso to Section 138'.

7. Admittedly in terms of clause 3 to proviso to Section 138 of NIA, statutory notices have not been issued to the Company, which had issued the cheques and therefore, the trial Court has rightly found that the cognizance cannot be taken and rightly dismissed the complaints under Section 203 of Cr.P.C. The Judgment cited above, relied on by the learned counsel appearing for the petitioner, is no application to the facts of the case for the reason that in the said case, prosecution was launched under Section 47 of the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996 and the learned Judge of this Court has considered the scope of Section 63 of the said Act, and further taking into account that the said legislation is a Social Welfare Legislation, has directed the lower court to issue summons to the company though it was not arrayed as accused. In the case on hand, in the light of the above said mandatory provision the obligation is cast upon the revision petitioner / complainant to is

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sue statutory notices to the company, which issued the cheques and also array them as accused in the private complaint but unfortunately, he has failed to do so. 8. This Court on going through the materials is of the considered opinion that there is no infirmity or error apparent on the face of the record in the impugned order passed by the trial Court. 9. In the result, the all the revisions petitions are dismissed, confirming the order dated 12.05.2014, in unnumbered S.T.C/2014 passed by the learned Judicial Magistrate No.II, (Fast Track Court at Magisterial Level), Madurai.
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