Habibunnisa Akthar and another vs S. and S. Industries and Enterprises Ltd.

Pratap Singh, J.—Accused Nos. 2 and 3 in C.C. No. 2889 of 1993, on the file of the XVIIth Metropolitan Magistrate, Saidapet, have filed

this petition u/s 482 of the Criminal Procedure Code, 1973, praying to call for the records in the above case and to quash the same.

The shorts facts are : The respondent has preferred a private complaint against Agro General Merchants, Mrs. Monisa Akthar describing her as

partner of the first accused and Mr. Ahamed Ansari, describing him as partner of the first accused for an offence u/s 138 of the Negotiable

Instruments Act, 1881, (which I shall hereinafter refer to as ""the Act""). The allegations in it are briefly as follows : The first accused is a partnership

firm and accused Nos. 2 and 3 are partners of the first accused and are in charge of and responsible to the first accused for the conduct of the

business. The complainant is the manufacturer of edible oil. The first accused is the dealer. The first accused represented by the second accused

purchased edible oil from, the complainant on credit. In December 1992, the first accused drew two cheques, dated December 20, 1992 and

December 10, 1992 for Rs. 70,000 and Rs. 74,375, respectively, in favour of the complainant. The complainant presented the same on the due

dates and they were dishonored. The complainant informed accuse Nos. 2 and 3 who were in charge of and responsible for the first accused

company. On the instructions from the accused, the accused, the complainant presented the cheque dated December 10, 1992, on February 16,

1993. The cheque was dishonoured on February 17, 1993, for ""insufficient funds"". The complainant sent a notice on February 20, 1993, to

accused Nos. 1 to 3. The first accused received the notice on February 22, 1993. The notices addressed to accused Nos. 2 and 3 were returned

unserved. The amount under the cheque was not paid within 15 days from the date of service of notice. Hence the complaint.

Mr. K. V. Venkatapathi, learned counsel appearing for the petitioner, would submit that in paragraph 3 of the complaint, it is stated that the two

cheques were drawn by the first accused and that there is no allegation that they were issued for a legal enforceable liability and hence the offence

has not been made out. (2) The third accused is not a partner and the extract from the Registrar of Firms, the copy of which is filed in the typed set

would show that he was not a partner of the first accused firm and hence, he is not liable. (3) The name of the second accused differs and the name

as given in the complaint is not the correct name. Though this fact has been brought to the notice of the court below, the court below had not acted

upon it. I have carefully considered the submissions made by learned counsel and I shall consider them seriatim. To consider the first submission,

the relevant allegations in paragraph 3 of the complaint need be stated. It is stated as follows :

The complainant is the manufacturer of edible oil and the first accused is the dealer and the first accused represented by the second accused

purchased edible oil from the complainant on credit."" Then, it is stated that in December 1992, the first accused drew two cheques dated

December 20, 1992, and December 10, 1992, for Rs. 70,000 and Rs. 74,375, respectively. The cheque, which is the subject-matter of the

complaint is the cheque dated December 10, 1992. If all the allegations in paragraph 3 of the complaint are read conjointly, it would give an

inference that the cheques were issued in favour of the complainant in respect of the purchase of edible oil, on credit. So, I am unable to accept the

submission made by learned counsel. Learned counsel would reply upon K. Kumar Vs. Bapsons Foot Wear, . In that case, the relevant allegation

in the complaint reads as follows (at page 174) :

The complainant states that in the course of their business, the accused had issued a cheque S.B. No. 795044, dated December 20, 1989, for

Rs. 2,000 drawn on Karur Vysya Bank Limited, Polur, North Arcot District.

There is absolutely no whisper that it was issued in respect of any transaction on credit as in this case. This bare allegation was held to be

insufficient to satisfy the requirement that the cheque was issued in discharge of a legal enforceable debt. Hence, that ruling is not applicable to the

facts of this case.

Regarding the second submission, learned counsel would reply upon the true copy of the extract from the Registrar of Firms in which the name

of the third accused does not find a place in the list of names of the partners. But, there are positive allegations in the complaint at more than one

place that the third accused is the partner of the first accused company. Whether the allegations made in the complaint are true or whether this

extract reflects the real state of affairs are matters which can be gone into only when evidence in that regard is let in and which can come only at the

stage of trial. Hence, I am unable to accept this submission made by learned counsel.

Regarding the third submission, according to the complainant, the name of the second accused is Mrs. Monisa Akthar, whereas according to the

petitioner, the correct name is Mrs. Habibunnisa Akthar. If the complainant chooses to amend it, the court below can take it. If the complainant

insists that only the correct name is given in the complaint, then it is for the court below to proceed with the case and if it is found that an incorrect

name is given in the complaint, the trial court will pass appropriate orders. Beyond that on this mere submission, the complaint cannot be thrown

out at the threshold itself. Since none of the submissions made by Mr. K. V. Venkatapathi finds acceptance with me, this petition fails and shall

stand dismissed.