9911796707
TMI Blog1996 (12) TMI 385X X X X Extracts X X X X X X X X Extracts X X X X ..... e issued a cheque dated 20-12-1991 vide Ex. P-2 which has bounced back with the endorsement of the Bank 'exceeds arrangement'. The complainant accordingly received the dishonoured cheque along with the cheque returned memo dated 29-4-1992 from the bankers on 13-5-1992. Thereafter a legal notice dated 15-5-1992 was issued to the accused calling upon him to make the payment of a sum of ₹ 2,64,000/- together with interest at the rate of 18% p.a. from the date of the cheque till the date of the payment within 15 days from the date of receipt of the legal notice and the said legal notice was received by the accused on 18-5-1992. There-after accused vide their letter dated 30-5-1992 sent a Demand Draft for an amount of ₹ 20,00 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cumstances the present appeal is preferred. 2. The learned counsel appearing for the appellant submitted that the entire approach of the Court below is not correct and accordingly the impugned judgment and order are liable to be set aside. On the other hand the learned counsel for the respondents supported the judgment not only for the reasons urged in the impugned order but also on the ground that the complaint itself was not maintainable being filed by one of the Directors for and on behalf of the company without any authority. He also submitted that on the date of issuing the cheque there was no existing liability and as such offence under Section 138 of the Negotiable Instruments Act is not constituted. He also stated that the goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 29-5-1992, vide Ex. P-7, stating that exceeds arrangement and after the said memo the complainant issued a notice to the accused demanding the payment of the amount mentioned in the cheque within 15 days vide notice dated 15-5-92 filed in the case at Ex. P-9. On failure on the part of the accused the present complaint was filed and Ex. P-10 is the postal receipt and Ex. P-11 and 12 are the postal acknowledgments. Meanwhile the accused sent ₹ 20,000/- (vide Ex. P-13) vide letter dated 30-5-92 along with a Demand Draft for the said amount of ₹ 20,000/- filed in the case at Ex. P-13. On verification I found that the present complaint was filed through one of the Directors of the Company. The complaint does not disclose that eit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in spite of receiving the letter from the accused intimating the rejection of the material. On the basis of this evidence the Court below held that as on the date of the cheque there was no existing debt or liability the cheque being a post dated cheque. Therefore, its rejection does not constitute an offence under Section 138 of the Negotiable Instruments Act. I do not think that there is any infirmity in this reasoning of the Court below. Explanation to Section 138 of the Negotiable Instruments Act clearly makes it clear that the cheque shall be relateable to an enforceable liability or debt and as on the date of the issuing of the cheque there was no existing liability in the sense that the title in the property had not passed on to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it was ₹ 6.65 paise. From the bill vide Ex. P-1 the complainant stated that the material as Grade II, and the quantity at 14000 metres and the price at ₹ 7.15 paise i.e. the price of Grade-I material. In these circumstances, the complainant could not have described the entire material as Grade-II. Moreover as per the quotation the rate of Grade-II material was ₹ 6.65 paise whereas the bill vide Ex. P-1 mentions that 36,000 square metres of cloth was supplied at the rate of ₹ 7.30 paise per metre i.e. a rate more than what is prescribed for Grade-I material. From this bill it is clear that the accused has paid a rate either at ₹ 7.15 paise per metre or at ₹ 7.30 paise per metre, and the rate as per the qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y itself is a legal person. Of course one of the Directors can present a complaint if there is a proper authorisation in favour of such a Director. P.W. 1 in his cross-examination admitted as under : I have not filed either a Memorandum of Understanding or Articles of Association. I do not know whether we filed any authorisation authorising me to appear before this Court in this case. From this evidence it is clear that it is admitted on behalf of the complainant that no authorisation letter or any resolution was filed in this case authorising the present Director to institute the present proceedings. Company being by itself a legal person and it is the company which is the holder in due course and that company alone could file the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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