TMI Blog2002 (11) TMI 660X X X X Extracts X X X X X X X X Extracts X X X X ..... the first petitioner company as a short term deposit for a period of 90 days. After maturity on 7-2-2000 a cheque bearing No. 010696 was issued in favour of second respondent for Rs. 82,961 drawn on ICICI Banking Corporation Limited, S.D. Road Branch, Secunderabad signed by two whole time directors. The said cheque was deposited into the bank and the same was dis-honoured. Thereafter, a legal notice is stated to have been issued on 31-7-2000. 3. While so, the first petitioner herein sent a demand draft bearing No. 26137 dated 8-8-2000 for an amount of Rs. 4,150. In response to legal notice dated 31-7-2000, a reply notice dated 21-8-2000 was issued by first and second petitioners. In the complaint it is specifically stated in the reply ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the affairs of the company is also responsible for the offences alleged. 6. Learned Public Prosecutor contends that it is not a fit case where inherent powers can be exercised to quash the proceedings and contends that the matter has to be relegated to trial. 7. Adverting to the said contentions, it is clearly stated in S.P. Sampathy s case ( supra ) that if the complaint is not signed by the payee, the complaint is not maintainable by the G.P.A. Holder or his Agent. It appears that in the said decision, the decision in Payyati Savitri Devi v. Mali Reddy Damayanthamma 1997 (4) ALD 815 was over-ruled. However, it is already urged that the operation of the S.P. Sampathy s case ( supra ) was stayed by the Apex Court. It is nec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Magistrate : Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses, ( a )if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or ( b )if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 192 : Provided further that if the Magistrate makes over the case to another Magistrate under section 192 after examining the complainant and the witnesses, the latter Magistrate need not re-exa-mine them." 10. It is clear from section 200 of Cr. P.C. that whenever a complaint is presented, the Magistrate shall examine the complainant and witnesses present. It is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... P.C. by the Magistrate is mandatory. It does not contemplate examining G.P.A. holders, only. The original complainant have to be examined at the time of presentation of the complaint. As the payees are not present at the time of filing of the complaint and have not filed the written complaint into Court and as their sworn statements are not recorded, I am of the considered view that procedure contemplated under section 200 of Cr. P.C. has not been followed or adhered to by the learned Magistrate and the proceedings are liable to be quashed on that ground also. 12. Coming to the aspect of petitioners contention that second respondent was not responsible for issuance of the cheques it cannot be said that the said argument is without any f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orporate and includes a firm or other association of individuals; and ( b ) director in relation to a firm, means a partner in the firm." 13. By the date of dishonour of the cheques, he was not a Director. It is only after the issuance of the notice, he was appointed by the Company Law Board. In that view of the matter, he cannot be held responsible vicariously under section 141 of N.I. Act, as it cannot be said that he has given consent and connivance as he is not a Director at the time of issuance of the cheque. Coming to non furnishing of the information of the prior Directors, it cannot lead to prosecute the present Directors. This Court is unable to understand how the de facto complainant can demand as of right to furnish the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... till rules are framed either under Negotiable Instruments Act or under Criminal Procedure Code. The guidelines are as follows : ( a )Whenever G.P.A. holder presents a complaint before the Court, the Magistrate shall insist upon the signature of the payee on the complaint, and he shall record sworn statement of not only the payee, G.P.A. holder and endeavour shall also be made to record the sworn statement of de facto complainant, at whose instance provisions of section 142 of N.I. Act are invoked. ( b )If more than one complaint is presented, the complainant and the persons who have got the knowledge of the offence shall be examined before the Court. ( c )If cause of action differs for each of the complainant, the Magistrate shall e ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
