9911796707
TMI Blog2001 (11) TMI 837X X X X Extracts X X X X X X X X Extracts X X X X ..... Negotiable Instruments Act, ('the Act') have been quashed. 4. The appellant is a Government of India company, incorporated under the Companies Act, 1956. The appellant has a Regional Office at Chennai. The 1st respondent is also a company. The 2nd and 3rd respondents were/are the directors of the 1st respondent company. It is stated that 2nd respondent has now died. 5. The appellant and the 1st respondent entered into a Memorandum of Understanding ('MoU') dated 1-6-1994. This MoU was slightly altered on 19-9-1994. Pursuant to the MoU two cheques, one dated 31-10-1994 in a sum of Rs. 20,26,995 and another dated 10-11-1994 in a sum of Rs. 22,10,156 were issued by the 1st respondent in favour of the appellant. Both the cheques when presente ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Court restored the four complaints and directed the Magistrate to proceed with the trial in accordance with law. The respondents filed SLPs before this Court which were summarily dismissed. 8. In this case the respondents have taken identical contentions in their petitions to quash the complaints, viz., that the complaints filed by Mr. Lakshman Goel were not maintainable and that the cheques were not given for any debt or liability. It was pointed out to the learned Judge that between the same parties and on identical facts, it has already been held that a case for discharge was made out. Yet the learned Judge chose to ignore those findings and proceeded to hold to the contrary. 9. In the impugned judgment it has been held that the comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... corporation, who has only artificial existence through a particular mode and when that mode is not followed, any proceedings initiated or any complaint filed will be vitiated from its very inception. In my opinion, here the complaint is signed and presented by a person, who is neither an authorised agent nor a person empowered under the articles of association or by any resolution of the Board to do so. Hence, the complaint is not maintainable. The taking cognizance of such a complaint is legally not acceptable. Hence, these two complaints filed for and on behalf of MMTC Ltd. against the petitioners herein, which were taken on file in C.C. Nos. 3324 of 1995 and 3325 of 1995 are not maintainable at all and that cognizance of the said compla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... physical appearance in the Court. It has been held that if a complaint is made in the name of an incorporeal person (like a company or corporation), it is necessary that a natural person represents such juristic person in the Court. It is held that the Court looks upon the natural person to be the complainant for all practical purposes. It is held that when the complainant is a body corporate, it is the de jure complainant, and it must necessarily associate a human being as de facto complainant to represent the former in the Court proceedings. It has further been held that no Magistrate shall insist that the particular person, whose statement was taken on oath at the first instance, alone can continue to represent the company till the end ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ally in the complaint that there was a subsisting liability and an enforceable debt and to discharge the same, the cheques were issued. But, we do not find any such allegation at all. The absence of such vital allegation, considerably impairs the maintainability." In the case of Maruti Udyog Ltd. v. Narender [1999] 1 SCC 113, this Court has held that, by virtue of section 139 of the Act, the Court has to draw a presumption that the holder of the cheque received the cheque for discharge of a debt or liability until the contrary is proved. This Court has held that at the initial stage of the proceedings the High Court was not justified in entertaining and accepting a plea that there was no debt or liability and thereby quashing the complaint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acted in such a case also. The authority shows that even when the cheque is dishonoured by reason of stop payment instructions by virtue of section 139 the Court has to presume that the cheque was received by the holder for the discharge, in whole or in part, of any debt or liability. Of course this is a rebuttable presumption. The accused can, thus, show that the 'stop payment' instructions were not issued because of insufficiency or paucity of funds. If the accused shows that in his account there were sufficient funds to clear the amount of the cheque at the time of presentation of the cheque for encashment at the drawer bank and that the stop payment notice had been issued because of other valid causes including that there was no existin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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