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TMI Blog2018 (11) TMI 36X X X X Extracts X X X X X X X X Extracts X X X X ..... of any offence punishable under Section 138 except upon complaint in writing made by the payee or as the case may be, the holder in due course of the cheque; such complaint is made within one month of the date on which the cause of action arises and the offence under Section 138 shall be inquired into and tried only by a Court within whose local jurisdiction the cheque is delivered for collection through an account, the branch of the bank where the payee or holder in due course as the case may be, maintains the account is situated or if the instrument is presented for payment by the payee or holder indue course, otherwise through an account, the branch of the drawee bank where the drawer maintains the account is situated. Further, the in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion of the Hon'ble Apex Court reported in 2014 (16) SCC 1 (Pooja Ravinder Devidasani Vs. State of Maharastra) , whereinit is held that to fasten vicarious liability under Section 141 of the Acton a person, at the material time that person should have been at thehelm of affairs of the Company, one who actively looks after the day today activities of the Company and particularly responsible for theconduct of its business and it is further held that simply because aperson is a Director of a Company, it does not make him liable underthe Negotiable Instruments Act. 4.The issue involved in the present case is whether the learnedMagistrate can dismiss the complaint by invoking the proviso toSection 203 of Cr.P.C. at the initial stage be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner/ complainanttransferred a sum of ₹ 1,65,000/- to the accounts of respondents 1and 3. After receipt of the said sum, for the due discharge of theabove said sum, the accused 1 and 2 issued cheque bearingNo.000192 dated 16.11.2017 drawn on Karur Vysya Bank, WhitesRoad Branch for a sum of ₹ 1,50,000/-. The above said cheque wasissued in lieu of the money borrowed from the complainant. Accused 1and 2 are the Proprietrix and Proprietor. 9.When the complainant wanted to present the cheque forcollection, the first accused asked the complainant to present thecheque for collection on 09.01.2018. Accordingly, the complainantpresented the cheque for collection on 09.01.2018, however, the samewas returned with the endorsement & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egotiableInstruments Law, Amendment Act, 1998 (66 of 1988 w.e.f. 1.4.1989)with the object of promoting banking operation and ensuring crediblebusiness transaction through banks. The said Chapter containsSections 138 to 147. 14.Section 138 of the said Act deals with dishonour of chequesfor insufficiency of funds in the accounts. Section 139 of the Act dealswith presumption in favour of holder. According to the provisions ofSection 140 of the Act, it should not be a defence in prosecution for anoffence under Section 138 that the drawer had reason to believe thecheque might be dishonoured on present for the reasons stated in theabove Section. Section 141 deals with offences by the companies. Section 142 deals with procedure for taking co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Central Bankand it is relevant to mention Section 142 of the Act deals withcognizance of offence. 18.As per Section 142 of the Negotiable Instruments Act,notwithstanding anything contained in Cr.P.C., no Court shall takecognizance of any offence punishable under Section 138 except uponcomplaint in writing made by the payee or as the case may be, theholder in due course of the cheque; such complaint is made within onemonth of the date on which the cause of action arises and the offenceunder Section 138 shall be inquired into and tried only by a Courtwithin whose local jurisdiction the cheque is delivered for collectionthrough an account, the branch of the bank where the payee or holderin due course as the case may be, maintains the acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for NJFAgencies' and signed by 'proprietor/ protrietrix/ authorised signatory'. Further, the complainant in paragraph no.6 of the complaint hasspecifically stated as follows: The accused No.1 and 2 claimedthat both the accused No.1 2 alone arein active business of NJF Agencies and the1st Accused will be signing the cheque inthe usual course of business and so all theaccused are liable to discharge the chequeamount. Hence, this Court is of the view that there are sufficient materials toproceed with the case. 22.In view of the above, without conducting any trial andforeclosing the issue at the preliminary stage is not sustainable. Hence, I am inclined to set aside the order dated 01.09.2018 passed inM.P.No.3 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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