The conviction under S. 138 of the Negotiable Instruments Act in C.C No. 99 of 1994 on the file of learned Judicial Magistrate, Palani, thereby sentenced to undergo imprisonment till the rising of the Court and to pay a fine of Rs. 3,000/-, in default to undergo R.I for six weeks, is the subject matter of the challenge in this revision filed by the petitioner.
2. One Iyyammal, the respondent herein, filed a complaint against K.S Subburaman of Madurai Chits and Investments (P) Limited, Ottanchatram, the petitioner herein alleging that the cheque issued in favour of the complainant by the petitioner towards the discharge of the balance chit amount to be paid, was dishonoured and that despite the notice, the cheque amount was not paid by the petitioner. Originally, the complaint was filed against the petitioner, the Managing Director of the Company and his wife Pavanthai, the Director of the said Company. The trial Court acquitted the second accused holding that there was no material to hold that the said Director was in charge and responsible for the affairs of the Company. However, the petitioner was convicted as referred to above holding that the offence was proved against him. Hence, this Revision.
3. Mr. Natarajan, through raised several points, would, at the end, confine himself to the points given below:
(i) The complaint was not maintainable, since the cheque was deposited in the complainant's Bank for collection after the expiry of the validity period, namely, six months.
(ii) The cheque was issued by the petitioner on behalf of Madurai Chits and Investments (P) Limited. In the absence of the inclusion of the Company as an accused, the complaint against the Managing Director alone not sustainable.
4. Mr. Sundararajan, the learned counsel for the respondent would repeal the submission by pointing out that these submissions are not valid and the reasonings given by the trial Court for rejecting these contentions are proper.
5. I have heard the counsel for the parties and perused the records.
6. As regards the first point, it must be noted that the cheque was issued on 25.6.1993 and the same was presented on 27.12.1993 As per the provision, the cheque was valid only for six months. The said period expired on 25.12.1993 Therefore, the presentation of the cheque on 27.12.1993, admittedly, is only after the expiry of six months. But, even in the complaint the said position has been clarified stating that the date 25.12.1993 and 26.12.1993 were holidays and the next working day was 27.12.1993 and so, on that date the said cheque was presented. The relevant portion in the complaint is this :—
7. The reading of S. 25 of the Negotiable Instruments Act would clearly show that if the day on which the cheque period expires, is a public holiday, the cheque shall be deemed to be due on the next preceding business day, in the said Section, the explanation would indicate that the expression “Public Holiday” includes Sunday. Under this provision, though the presentation of the cheque was made on 27.12.1993, after two days of the expiry, since 25.12.1993 and 26.12.1993 are public holidays, it shall be held that the cheque was valid and the six months' period expired only on the date of the presentation of the cheque and as such, the complaint is sustainable.
8. As regards the second point, namely, non-inclusion of the Company as the co-accused, the trial Court has followed the judgment of this Court rendered in N. Doraisamy v. Archana Enterprises (1995 M.L.J (Crl.) 482: 1995 Cri.L.J 2306) and that of the Kerala High Court in Iqbal v. Uthaman (1994 (2) Crimes 72: (1995) 82 Company Cases 726) and held that when the offence is committed by a Company, either the company alone, or the person incharge of the business of the company alone, or both of them together, can be prosecuted for the offence under S. 138.
9. The judgment rendered by this Court, reported in 1995 M.L.J (Crl.) 482 (supra) interpreting the Sections on first principle and following the judgment of the Apex Court in Sheoratam Agarwal v. State of Madhya Pradesh (A.I.R 1984 S.C 1824), while dealing with the aspect elaborately, concluded that the Managing Director of the Company can be prosecuted even without including the company as a co-accused. The gist of the proposition given in the decision referred to above is that the prosecution proceedings against the persons-in-charge of and responsible to the Company for the conduct of its business, or the persons, with whose consent or connivance of, or an act attributable to, or due to any neglect on their part, the offence had been committed, are maintainable irrespective of whether the company is prosecuted or not. In this decision, Honourable Janarthanam, J. held that the earlier decision rendered by this Court on this point is contrary to the said view and that the said proposition of law was not correctly laid down, in the light of the Supreme Court's decision reported in A.I.R 1984 S.C 1824. I am in entire agreement with the view expressed in the said decision.
10. In this case, the petitioner has been made as an accused not in the individual capacity, but in the capacity of Managing Director of the Company. It is also admitted that the cheque was issued by him. Therefore, the petitioner cannot escape from his liability by stating that the Company has not been made as an accused. In fact, the company functions only through the human agency. There is no dispute with regard to the fact that the petitioner is the Managing Director through whom the entire functions of the Company are being performed. Therefore, this ground also would not appeal to me, as the trial Court has correctly followed the decision of this Court, stated supra.
11. Under these circumstances, I do not find any merit in this revision. Consequently the revision is dismissed.