@JUDGMENTTAG-ORDER
M. Jeyapaul, J.@mdashThe petition is filed seeking quashment of the criminal proceedings in C.C. No. 26715 of 2004 pending on the file of the learned XIV Metropolitan Magistrate, Egmore, Chennai.
2. The petitioners are the accused in a case under Sections 138 and 141 of the Negotiable Instruments Act launched by the respondent/complainant.
3. The respondent/complainant has alleged that the second accused/second petitioner is the authorised distributor of the products of the complainant-company and the first accused/first petitioner is none other than the father of the second accused/second petitioner. The first accused signs cheques regularly on behalf of the second accused for business transactions which is being run under the name and style of Padmodaya Agencies. The second accused has authorised the first accused to determine the contracts between the parties and issue negotiable instruments to discharge the liabilities incurred by the second accused.
4. It is further alleged by the complainant that the complainant-company supplied goods to the accused and towards the existing liability, the accused issued a cheque bearing No. 581695 dated 17.5.2004 for Rs. 14,87,606.23 drawn on Canara Bank, Vadapalani Branch, Chennai, in favour of the complainant. On presentation of the said cheque, it was dishonoured with an endorsement "Payment Stopped By Drawer". On the instigation of the second accused, the first accused issued the cheque to discharge the liabilities of the second accused and thereby the second accused is also responsible for the offence committed. After issuing statutory notice calling upon the accused to pay the cheque amount, the criminal prosecution was launched as against the accused herein under Sections 138 and 141 of the Negotiable Instruments Act.
5. The accused have filed the petition seeking quashment on two grounds:-
1. When the payee in the cheque bearing No. 581695 dated 17.5.2004 is the complainant, M/s.Gillette India Limited, the cheque was presented by another company M/s.Indian Shaving Products Limited in their account through their bankers. Therefore, M/s.Indian Shaving Products Limited is the competent person to issue statutory notice and prosecute the accused for the offences under Sections 138 and 141 of the Negotiable Instruments Act.
2. The cheque was allegedly issued by the first accused on behalf of the second accused. Therefore, the first accused, being the alleged mandate holder, cannot be prosecuted as per the recent judgment of this Court.
6. The Court heard the submissions made on either side.
7. The records filed on the side of the complainant would establish that there had been amalgamation of M/s.Indian Shaving Products Limited with M/s.Gillette India Limited. The banker of course has returned the cheque as though a cheque was presented for collection by M/s.Indian Shaving Products Limited. It is submitted that the complainant had already informed the banker about the amalgamation of those two companies and the existence of M/s.Gillette India Limited alone after amalgamation but the banker has wrongly mentioned in the memo and returned the cheques as though M/s.Indian Shaving Products Limited was still in vogue. As sufficient material is produced on the side of the complainant to show the amalgamation as per the orders in the company petition, and such a disputed fact will have to be thrashed out only by the trial Court after scanning the evidence produced before it, this Court under the inherent jurisdiction is disinclined to quash the proceedings on that score.
8. It is the consistent case of the complainant that the cheque was issued by the first petitioner, who is the father of the second petitioner, on behalf of the business transaction the second petitioner had with the complainant.
9. The first petitioner is construed to be the mandate holder to issue cheque on behalf of the second petitioner.
10. Learned counsel for the petitioner produced an authority in
11. That was a case where the relationship of the complainant with the accused itself was not spoken to either in the complaint or in the chief examination of the complainant. When it was argued that the relationship itself was not spoken to by the complainant, the Hon''ble Supreme Court had an occasion to observe that the relationship between the drawer and payee is totally irrelevant.
12. In the latest judgment in Ravi Chandran, R. v. C. Subramanian (2006) 1 MLJ 68, this Court had an occasion to consider whether the mandate holder who issued the cheque on behalf of the account holder is liable to answer the criminal liability u/s 138 of the Negotiable Instruments Act and hold that such a mandate holder is not accountable to the proceedings u/s 138 of the Negotiable Instruments Act.
13. Admittedly in this case, the first petitioner who is the father of the second petitioner was the mandate holder to issue cheque on behalf of the second petitioner. The account is in the name of the second petitioner only. Therefore the first petitioner cannot be prosecuted u/s 138 of the Negotiable Instruments Act.
14. In the result, the criminal proceedings in C.C. No. 26715 of 2004 pending on the file of the learned XIV Metropolitan Magistrate, Egmore, Chennai as regards the first petitioner viz., Surendra Mal Mehta stands quashed and as regards the second petitioner viz., Deepak Mehta, the criminal original petition stands dismissed. Consequently, connected criminal miscellaneous petitions stand closed.
