TMI Blog2022 (6) TMI 1032X X X X Extracts X X X X X X X X Extracts X X X X ..... events, admittedly the cheques were drawn and handed over to the respondent much prior to the appointment of the so called independent Auditor and receipt of his report. After issuing the cheque for specific amount with date, the petitioners are attempt to make out a case that the cheques were not issued for the liability but only as a security and the liability are facts to be tested in trial much less than the cheque amount and not summarily by exercising Section 482 of Cr.P.C. This Court is of the view that the petitioners herein are liable to face the trial and prove their innocence. The power of the High Court under Section 482 of Cr.P.C., to quash the complaint cannot be exercised, in the case, where the complaint speaks about the participation of the accused persons and issuance of cheques for enforceable debt - Petition dismissed. - Criminal Original Petition No. 11064 of 2019 & Crl. M.P. No. 5623 of 2019 - - - Dated:- 15-6-2022 - THE HONOURABLE DR. JUSTICE G. JAYACHANDRAN For the Appellant : E. Om Prakash, Senior Counsel for S. Vijaya Ganesh For the Respondents : M. Govindarajan ORDER M. Murali, Proprietor of M2N Interiors engaged in business of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ennai, all the four cheques were returned with an endorsement Payments stopped by the drawer . When the petitioners were approached to clear the debt, they gave evasive reply and payment was not forthcoming. Thereafter, on intervention of common friends, the petitioners were requested to represent the cheques and the accused persons promised the cheques will be honoured. But, the said promise was breached. When those cheques were represented again on 10.05.2018, same were again bounced with endorsement Payments stopped by the drawer . After causing statutory notice, complaint was filed against the 1st Petitioner Company, its Managing Director and Directors. 5. In the complaint, it is alleged that the 3rd accused is the signatory of the cheques and accused 2, 4 5 are directly involved in the day-to-day affairs of the 1st petitioner/Company for the conduct of the business of the 1st accused/Company. They all took active part in dealing with the complainant therefore each one of them are responsible for the conduct of the Company and liable to prosecute under Section 138 of Negotiable Instruments Act, 1881. 6. The Learned Senior Counsel appearing for the petitioners would su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... power under Section 482 of Cr.P.C., to quash the criminal complaint has to be sparingly exercised and cannot be invoked merely for asking. 10. In response to the above counter, the Learned Senior Counsel appearing for the petitioners refer clause (c) of Terms and Conditions found in the Purchase Orders and state that, the parties agreed for chequered payments, initially 30% along with purchase order, 20% while processing, 30% after completion of the work and balance 20% after certification. Referring the e-mail communications between the parties he submit that, the subject cheques were issued pending certification and not towards the balance payable agreed. Referring the reply notice to the statutory notice he submit that, it has been made clear to the complainant that, the accused 2 4 are not in-charge of the affairs of the Company and not signatory to the cheques or purchase order and therefore, not liable for any prosecution. 11. In National Small Industries Corporation Limited cited supra, the Hon'ble Supreme Court, after considering the language employed in Section 141 of the Negotiable Instruments Act, 1881, and the provisions of Companies Act, has evolved the fol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 141(1) of Negotiable Instruments Act, 1881, will be of no assistance. But, there should be necessary averments in the complaint as to how and in what manner, the accused was guilty of consent, connivance or negligence. 13. In Gunmala Sales Private Limited and another vs. Navkar Promoters Private Limited and others reported in 2015(1) SCC 104, the Hon'ble Supreme Court has observed as below:- 7.2. So far as the decisions cited by the respondents are concerned, all these decisions purported to follow the law laid down in SMS Pharma (1) [S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla, (2005) 8 SCC 89, which does not lay down any general proposition of law that the specific role of a Director sought to be arrayed as an accused has to be elaborated in the complaint itself. 7.3. The doctrine of indoor management would be a relevant factor to be considered while assessing the averments to be made to satisfy the requirements of Section 141 of the NI Act. A complainant to whom a cheque is issued by a company may not be aware of the functions performed by a particular Director in the company. The responsibility of each of the Directors is exclusively the internal man ..... X X X X Extracts X X X X X X X X Extracts X X X X
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