9911796707
TMI Blog2018 (9) TMI 667X X X X Extracts X X X X X X X X Extracts X X X X ..... ef sought for in the petitioiner can very well be maintained by exercising the inherent jurisdiction of this Court under Section 482 of Cr.P.C. Though it is not proper for this Court to consider the defence of the accused or conduct a roving enquiry in respect of merits of the accusation, but if on the face of the document which is beyond suspicion or doubt, placed on record by the accused and if it is considered that the acusation against the petitiners cannot stand, in such a matter, in order to prevent injustice or abuse of process, it is incumbent on this Court to look into those documents, which have a bearing on the matter even at the initial stage and grant relief to the persons concerned by exercising jurisdiction under Section 482 of Cr.P.C. Petition allowed. - Crl.O.P.(MD).Nos.1354 of 2014 And M.P(MD).No.1 of 2014 - - - Dated:- 7-9-2018 - Mr. G. K. Ilanthiraiyan J. For the Petitioners : Mr.A.Jayaramachandran For the Respondent : Mr.D.Selvaraj ORDER This quash petition is filed to quash the criminal proceedings in C.C.No.49 of 2010 on the file of the Judicial Magistrate No.1, Dindigul filed for the offence under Section 138 of Negotiable Instrument ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led by both the accused. 3.The learned counsel appearing for the petitioners/accused raised the following grounds for quashing the complaint. (i)the petitioners had executed a release deed dated 01.04.2008, whereby they retired from the partnership from S.S.Agency and relinquished all their rights and liabilities in the firm in favour of their co-partner one Mr.S.Kalidass with effect from 31.03.2008. Therefore, the alleged date of purchase of cotton yarn on credit basis on behalf of S.S.Agency, the petitioners were not partners and they have noway connected with the said purchase. Further, they did not issue any cheque on behalf of the partnership firm in favour of the complainant. When the alleged cheque was issued on behalf of the partnership firm, the complainant ought to have impleaded the partnership firm as an accused. Here, the partnership firm was not added as an accused and impleaded the partners alone as an accused in the present complaint. Further, the alleged cheque was not signed and not issued by the accused in favour of the complainant and therefore, they are not liable to be prosecuted for the offence under Section 138 of the Negotiable Instrument Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cheque specified in the complaint on behalf of the partnership firm. Therefore the attitude of the accused would go to establish the fact that the cheque was issued with an intention to cheat the complainant knowing fully well that the cheque would not be honoured since he is not the partner of the partnership firm at the time of issuance of cheque, which is not only punishable under the provision of Negotiable Instrument Act, but also punishable under Sections 406, 417 and 420 of I.P.C. Further, he would submit that the accused are incharge of day-today affairs of the partnership firm and they actually involved in conduct of the business of the partnership firm when the offences were committed and as such, they are liable to be prosecuted. 6.Heard the learned counsel appearing for the petitioner as well as the learned counsel appearing for the respondent and perused the materials placed before this Court. 7.On perusal of the complaint, it has been filed by one S.Palanivel, S/o.S.P.Subbiah Pillai, power of attorney of one Mr.N.Krishnasamy, S/o.Nallamuthu Gounder representing the complany viz., Sri Saravana Spinning Mills Private Limited, Dindigul. The first document annex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rectors may think fit, and the Directors may at any time remove any person so appointed and may annul or vary any such delegation. 12.From the close reading of the said Rule the delegation powers completely vests with the Directors and they can appoint any person to perform any act. In the instant case, the Directors of the complainant have not delegated any power to the Assistant Area Manager viz., Rajagopal to institute the present proceeding. Only the Regional Manger has delegated necessary power to the said Rajagopal to institute the present proceeding. 13.At this juncture, a nice legal question arises as to whether a delegate can further delegate. The axiomatic maxim is Delecata Protestas non protest delegari . The maxim lays down the general rule that an agent cannot delegate his powers or duties to another, in whole or in part, without the express authority of the principal or authority derived from the statute. 14.In the instant case, as noted down earlier, the Regional Manager has given necessary authorisation to the Assistant Area Manager to file the complaint. The Regional Manager is the delegate of the Board of Directors and he is nothing but a delegate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble to be prosecuted on behalf of the paretnership firm of S.S.Agency. In this regard, the learned counsel apeparing for the petitioner would rely upon the judgment of this Court reported in (2014) 1 MLJ (Crl) 180 S.Rajarathinavel V. Visalatchi Enterprises , wherein, this Court has held as follows: 32. On coming to the instant case on hand, it is the specific case of the petitioners that when they had resigned from their office of the directorship of the first accused company long prior to the the alleged transaction and issuance of cheques, it is too much for the respondent to contend that the petitioners were not only the directors of the first accused company but they were also actually in-charge of it's day-today management. 33. Mr.S.Subbiah, learned counsel appearing for the petitioners has also argued that when the petitioners resigned from their respective offices of the directorship of the first accused company much earlier to the dates specified in Form No.32 namely 31.10.1999, 15.10.2003, 31.12.2003 and 03.01.2007 respectively were infact ceased to hold the office, it would be a futile effort on the part of the respondent to implicate the petitioners as i ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
