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TMI Blog2020 (1) TMI 1353X X X X Extracts X X X X X X X X Extracts X X X X ..... e investigation of the offence is contemplated. The prosecution is initiated on the basis of a written complaint made by the payee of a cheque. Obviously such complaints must contain the factual allegations constituting each of the ingredients of the offence under Section 138 - In the present case though the instrument was issued by the Director and Executive Director of the Company, the Company was not arraigned as a party and only the individuals are arraigned as party and the said cheque was issued for non-payment of sale consideration - Admittedly, no statutory notice was issued as against the petitioner and he was implicated by filing a petition under Section 319 of Cr.P.C and the same was ordered on 17.08.2009 without following necessary procedures required under section 138 and 142 of Negotiable Instruments Act. Petition allowed. - Crl.O.P.No.10356 of 2011 and M.P.Nos.1 and 2 of 2011 - - - Dated:- 6-1-2020 - THE HONOURABLE MR.JUSTICE M.DHANDAPANI For the Petitioner : Mr.R.Ganesh Kumar For the Respondents : Mrs.C.R.Rukmani ORDER This Criminal Original Petition has been filed to call for the records and quash the complaint in CC.No.25 of 2005 on the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ead the petitioner herein as 3rd accused. The trial court without issuing notice and without following the procedure under Section 142 of Negotiable Instruments Act allowed the said petition. Filing a complaint without issuing statutory notice, itself is bad in law. Further, though the complaint was filed in the year 2005 and the statutory period of 30 days was over in the year 2005 itself, after a lapse of 4 years, the respondent filing a petition u/s.319 Cr.P.C for impleading the petitioner as an accused is unsustainable. 5. The learned counsel for the petitioner in support of his contention had relied upon the judgment of the Hon'ble Apex Court in N.Harihara Krishnan vs. J.Thomas reported in 2017 SCC OnLine SC 1017, wherein, it has been clearly held in paragraph No.33 that in the offence under Section 138 of the Negotiable Instruments Act, the first ingredient constituting the offence is the fact that a person drew a cheque. The identity of the drawer of the cheque is necessarily required to be known to the complainant (payee) and needs investigation and would not normally be in dispute unless the person who is alleged to have drawn a cheque dispute that very fact. The ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able Instruments Act, being allowed on 17.08.2009. Further on a perusal of the alleged cheque reveals that it was signed by the Director and the Executive Director for Dhana Teja Investments Ltd., on 31.10.1997 bearing cheque No.423515. However, this court perused the 138 complaint, on a perusal of the compliant, it reveals that Tirupathiah and Chennappa Naidu were initially implicated as accused. However, the company viz., Dhana Teja Investments Ltd., was not implicated as accused in the said complaint. The Balasubba Naidu, who is the present petitioner was not originally arraigned as an accused and he was subsequently implicated under 319 Cr.P.C vide order dated 17.08.2009. 8. This court had also perused the decision of the Kerala High Court in M/s.Plywood House Vs. M/s.Wood Craft Products Ltd. and others reported in 1194 CRI.L.J.543, wherein the Kerala High Court held that the court have power to proceed against any other person who appears to have committed any offence for which such person could be tried together with the accused already arraigned in the case. Once the court decides to proceed against such other person then sub-sec (4) will save the earlier act of taking co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... By the nature of the offence under Section 138 of THE ACT, the first ingredient constituting the offence is the fact that a person drew a cheque. The identity of the drawer of the cheque is necessarily required to be known to the complainant (payee) and needs investigation and would not normally be in dispute unless the person who is alleged to have drawn a cheque disputes that very fact. The other facts required to be proved for securing the punishment of the person who drew a cheque that eventually got dishonoured is that the payee of the cheque did in fact comply with each one of the steps contemplated under Section 138 of THE ACT before initiating prosecution. Because it is already held by this Court that failure to comply with any one of the steps contemplated under Section 138 would not provide cause of action for prosecution . Therefore, in the context of a prosecution under Section 138, the concept of taking cognizance of the offence but not the offender is not appropriate. Unless the complaint contains all the necessary factual allegations constituting each of the ingredients of the offence under Section 138, the Court cannot take cognizance of the offence. Dis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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