TaxTMI 
TaxTMI 
2018 (9) TMI 667
X X X X Extracts X X X X
X X X X Extracts X X X X
.... through cheques. While being so, from 03.04.2009 to 15.09.2009, the complainant company supplied cotton yarn to the tune of Rs. 6,44,000/- from the first unit of the complainant company and for a sum of Rs. 1,28,880/- from the second unit of the complainant company. IN this regard, towards repayment of the same, on 16.09.2009, the first accused issued cheque bearing No.270817 dated 21.10.2009 for a sum of Rs. 7,73,280/- in favour of the complainant company. This cheque has been issued by the first accused on behalf of M/s.S.S.Agency as a partner. The second accused is also one of the partner of M/s.S.S.Agency and he knows very well about the issuance of cheque and both the partners are very much looking after the day-to-day affairs of the S.S.Agency. The said cheque was presented on 22.10.2009 and the same was returned dishonoured for the reason 'insufficient funds' on 26.10.2009. Thereafter, the complainant caused statutory notice to the accused dated 24.11.2009. It was duly received by the first accused on 30.11.2009 and the notice was refused by the second accused and returned the same on 26.11.2009. After receipt of the said notice, on 02.12.2009, A1 issued reply no....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ence to maintain the complaint for the offence under Section 138 of the Negotiable Instrument Act. (iii)The complainant company knows very well that the accused are already released by their retirement deed by submission of Form No.V under the Indian Partnership Act, 1932 and hence, they have noway connected with the said S.S.Agency. Even then, they have been shown as partners of S.S.Agency in the complaint that too without adding the partnership firm as an accused. Further, the accused inducted one Mr.Kalidass as a partner of S.S.Agency by their submission of Form V before the Registrar of Partnership Firm. The complainant company did not add the said Mr.Kalidass as a accused and it is fatal to the case of the complainant. Therefore, he sought for quashment of the entire criminal proceedings in C.C.No.49 of 2010 on the file of the learned Judicial Magistrate No.1, Dindigul. 4.Per contra, the learned counsel appearing for the respondent/complainant submitted that on Right to Information Act, by the Commercial Tax Department, the complainant was furnished with information that the accused are very much acted as partners of S.S.Agency Partnership Firm and till da....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sel appearing for the petitioners relied upon the unreported judgment passed by this Court in Criminal Appeal No. 1389 of 2003 vide judgment dated 24.03.2008 - M/s.J.K.Industries Ltd., Vs. Babu, wherein, this Court has held as follows: "9.From the decisions referred to supra, it is made clear to the Court that a company can file a complaint under Section 138 of the Negotiable Instruments Act, by a duly appointed Power of Attorney Agent. 10.The learned counsel appearing for the respondent/accused has also equally contended that the board of directors of the complainant have appointed the Regional Manager to look after its affairs and the Regional Manager has no locus standi to appoint the Assistant Area Manager viz., Rajagopal to institute the present proceeding and therefore, the complaint itself has been filed erroneously and the first appellate Court, after considering the above legal aspect, has rightly allowed the appeal and thereby set aside the conviction and sentence passed by the trial Court and therefore, the present criminal appeal deserves dismissal. 11.At this juncture, it would be more useful to look into Rule 174(3) of the Memorandum and Art....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ority derived from the Statute. It is clear that in the case on hand, the Managing Director has given powers to the Accounts Manager to file the present complaint. The Managing Director is the delegate of the Board of Directors and he is nothing but a delegate and as per the Board resolution, he cannot delegate his power or duty in favour of the Accounts Manager. Therefore, the present complaint is not legally maintainable. 8.It is also seen from the records that the petitioners have executed release deed in favour of one Mr.S.Kalidass on 01.04.2008 itself, thereby relinquished their rights and liabilities in the firm S.S.Agency from 31.03.2008. Further, they have also submitted Form V under the Indian Partnership Act, 1932 before the Registrar of Firm and registered on 28.04.2008. The certified copy of the same has also been filed in the typed set of papers. It is also seen that they have been inducted as partners on 15.07.2002 and they have been released from the partnership firm from 31.03.2008. Admittedly, the goods as per the complaint were supplied from 03.04.2009 to 14.09.2009 from the units of the compainant's company. 9.The alleged cheque was issued towards the p....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r doubt, placed on record by the accused and if it is considered, the accusation against the petitioners cannot stand and therefore the documents viz., Form No.32 have a bearing on the matter even at the initial stage and therefore as observed by the Apex Court in Anita Malhotra's case (cited supra), the relief, which is sought for in the petition can very well be granted by exercising the inherent jurisdiction of this Court under Section 482 Cr.P.C., 35. As observed by R.V.RAVEENDRAN, J., on behalf of the Division Bench in K.K.Ahuja's case (cited supra), the prevailing trend appears to require the complainant to state as to how a Director who is sought to be made an accused, was in charge of the business of the Company, as every Director need not be and is not in charge of the business of the Company. 36. In the instant case on hand also, the respondent, who is the complainant in the above said cases has not stated as to how the complaints have been filed against the petitioners. In the absence of appropriate answer on the part of the respondent, this Court, without any hesitation, can exercise the inherent jurisdiction of this Court under Section 482 Cr.....