TMI Blog2001 (11) TMI 837X X X X Extracts X X X X X X X X Extracts X X X X ..... The important thing is that the burden of so proving would be on the accused. Thus, a Court cannot quash a complaint on this ground. - CRL. APPEAL NOS. 1173-1174 OF 2001 SLP (CRL.) NOS. 289-290 OF 2000 - - - Dated:- 19-11-2001 - K.T. THOMAS AND S.N. VARIAVA, JJ. V.R. Reddy, Ashok Sharma and V.G. Progasam for the Appellant. S.M. Deenadayalan and K.V. Vijayakumar for the Respondent. JUDGMENT S.N. Variava, J. - Leave granted. 2. Heard parties. 3. These appeals are against a judgment dated 18-12-1998. By this common judgment two complaints, filed by the appellants, under section 138 of the Negotiable Instruments Act, ( the Act ) have been quashed. 4. The appellant is a Government of India company, incor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arge applications were on identical grounds as urged by the respondents in the two petitions for quashing the complaints. The Magistrate accepted the contention and discharged the respondents. The High Court allowed the revision filed by the appellants and set aside the order of discharge. The High Court held, as between the same parties, that the Magistrate had erred in holding that the complaints filed by Lakshman Goel were not maintainable. The High Court held that, at this stage, it was not possible to accept defence that complainant/appellants were not entitled to present the cheques as respondents had exported the goods. The High Court restored the four complaints and directed the Magistrate to proceed with the trial in accordance wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the complaint was barred by section 142( a ) of the Act. It has been held that senior manager (who had lodged the complaints) and the deputy general manager (who was substituted) had been authorised by the board of directors to sign and file the complaint on behalf of the company or to prosecute the same. It is held that the manager or the deputy general manager were mere paid employees of the company. It is then held as follows: "Therefore, it is clear that the legal position as crystallised by the rulings is to the effect that a complaint under section 138 of the Negotiable Instruments Act, can be filed for and on behalf of a body such as corporation, who has only artificial existence through a particular mode and when that mode is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any special provision for taking cognizance of such offences under the statute, then the complainant requesting the Magistrate to take cognizance of the offence must satisfy the eligibility criterion prescribed by the statute. In the present case, the only eligibility criterion prescribed by section 142 is that the complaint must be by the payee or the holder in due course. This criterion is satisfied as the complaint is in the name and on behalf of the appellant-company. 11. In the case of Associated Cement Co. Ltd. v. Keshvanand [1998] 1 SCC 687, it has been held by this Court that the complainant has to be a corporeal person who is capable of making a physical appearance in the Court. It has been held that if a complaint is made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he power of quashing criminal proceedings should be exercised very stringently and with circumspection. It is settled law that at this stage the Court is not justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the complaint. The inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice. At this stage the Court could not have gone into merits and/or come to a conclusion that there was no existing debt or liability. 12.1 It is next held as follows: "This is a special provision incorporated in the Negotiable Instruments Act. It is necessary to allege specifically in the complaint that there was a subsisting liability and an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... maintained if the cheque was dishonoured for reason of funds being insufficient to honour the cheque or if the amount of the cheque exceeds the amount in the account. It is submitted that as payment of the cheques had been stopped by the drawer one of the ingredients of section 138 was not fulfilled and, thus, the complaints were not maintainable. 13.1 Just such a contention has been negatived by this Court as, in the case of Modi Cements Ltd. v. Kuchil Kumar Nandi [1998] 3 SCC 249. It has been held that even though the cheque is dishonoured by reason of stop payment instruction an offence under section 138 could still be made out. It is held that the presumption under section 139 is attracted in such a case also. The authority s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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