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TMI Blog2011 (3) TMI 1464X X X X Extracts X X X X X X X X Extracts X X X X ..... t by two Directors - Since the aforesaid purported cheques do not bear the signatures of the second joint signatory, the aforesaid instruments do not qualify the definition of a valid cheque which could be acted upon by the bank in terms of the instructions regarding the mode of operation of the bank account. - aforesaid instruments cannot be termed as validly drawn cheques and as such one of the most essential ingredients of offence under section 138 N.I. Act is lacking in this case. The respondents may have committed an offence of cheating punishable under section 420 IPC but by no means it can be said that they are guilty of offence under section 138 N.I. Act. - CRL. L.P. NOS. 136, 137 & 139 OF 2010 CRL. M.A. NOS. 5095, 5096 & 5102 O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and 3 are its Directors. It is alleged in the complaints that respondent No. 1 company issued cheques in favour of the petitioner in discharge of the existing legal liability for the services rendered by the petitioner. Those cheques, when presented for encashment, were dishonoured by the drawee bank, namely, UTI Bank. The petitioner, on receipt of information regarding dishonour of the cheques, sent requisite demand notices under section 138 N.I. Act to the respondents but the respondents failed to make the payment of the amount of those cheques despite service of demand notices within reasonable period. This led to filing of above three complaints under section 138 N.I. Act against the respondents. 4. The defence taken by the accused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vide resolution dated 1-4-2005, respondent No. 1 company had appointed respondents No. 2 and 3 as authorised signatories to operate its bank account jointly. However, the cheques forming basis of the complaints filed by the petitioner were signed only by one of the authorised signatories, thus, learned M.M. came to the conclusion that the cheques in question which formed basis for the trial of the accused persons under section 138 N.I.Act were not valid cheques in the eyes of law. As such, the complaints under section 138 N.I. Act could not be maintained. 6. Learned Shri R.K. Thakur, Advocate appearing for the petitioner submits that learned M.M. has committed a grave error in dismissing the complaints under section 138 N.I. Act ignor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he cheque was returned unpaid by the drawee bank' ( d )That a notice of demand was issued in writing to the drawer calling upon him to pay the cheque amount; ( e )Failure of the drawer to make the payment within 15 days of the receipt of demand notice. 9. Thus, in order to bring home the guilt of the respondents under section 138 N.I. Act, the petitioners are first required to establish that the instruments which were presented for encashment and returned unpaid were actually the cheques as defined under section 6 of the N.I. Act. Section 6 of the N.I. Act defines a cheque as follows:- "6. 'Cheque' A 'cheque' is a bill of exchange drawn on a specified banker and not expressed to be payable otherwise than on demand and it inclu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sh Jha tendered his resignation as Director of the company and vide instructions letter dated 1-4-2005 of the respondent No. 1 company, the mode of operation of the bank account of respondent No. 1 was changed inasmuch as that the petitioner Mithilesh Jha was replaced as a joint signatory for operation of bank account by respondent No. 3 Mukta Awasthi. Admittedly, the purported cheques on the basis of which complaints have been filed by the petitioner are signed by only one of the joint signatories namely respondent No. 2 Mukta Awasthi. Since the aforesaid purported cheques do not bear the signatures of the second joint signatory, the aforesaid instruments do not qualify the definition of a valid cheque which could be acted upon by the ba ..... X X X X Extracts X X X X X X X X Extracts X X X X
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