{"id":108410,"date":"2007-01-22T00:00:00","date_gmt":"2007-01-21T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ms-elgi-finance-limited-vs-r-prabakaran-on-22-january-2007"},"modified":"2017-08-23T16:10:46","modified_gmt":"2017-08-23T10:40:46","slug":"ms-elgi-finance-limited-vs-r-prabakaran-on-22-january-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ms-elgi-finance-limited-vs-r-prabakaran-on-22-january-2007","title":{"rendered":"M\/S Elgi Finance Limited vs R.Prabakaran on 22 January, 2007"},"content":{"rendered":"
Madras High Court<\/div>\n
M\/S Elgi Finance Limited vs R.Prabakaran on 22 January, 2007<\/div>\n
       \n\n  \n\n  \n\n \n \n           IN THE HIGH COURT OF JUDICATURE AT MADRAS\n\n                      DATE : 22.01.2007\n\n                           CORAM:\n\n    THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN\n\n                    Crl.A.No.133 of 2000\n\n                              \nM\/s Elgi Finance Limited,\nrep by its Asst. Manager - Legal\nand Authorised Representative\nMr.P.N.Krishnamoorthy                ..Appellant\/Complainant\n\n\n                             vs.\n\n1.R.Prabakaran\n2.Ms.R.P.Sudha\n3.C.Dhanasekaran                ..Respondents\/Accused 2, 4 & 5\n\n\nPrayer:  This  criminal appeal has been  filed  against  the\njudgment  of  acquittal in so far as the respondents\/accused\n2,  4  & 5 are concerned, dated 29.1.1999 made in C.C.no.447\nof  1996  on  the  file  of the Judicial  Magistrate  No.VI,\nCoimbatore.\n\n\n     For Appellant      : Mr.T.S.Ramarathinam\n\n     For Respondents    : Mr.AR.L.Sundaresan, Senior Cousel,\n                          for Mrs. A.L.Gandhimathi\n\n\n\n                           JUDGMENT\n<\/pre>\n
      This appeal has been preferred against the judgment in<\/p>\n
C.C.No.447  of  1996 on the file of the Judicial  Magistrate<\/p>\n
No.VI, Coimbatore.  The complainant is the appellant herein.<\/p>\n
The appeal has been preferred against A2, A4 & A5 alone.<\/p>\n
     2. The short facts as narrated in the private complaint<\/p>\n
preferred  by  the complainant under Section 200  of  Cr.P.C<\/p>\n
relevant  for  the purpose of deciding this  appeal  are  as<\/p>\n
follow:-\n<\/p>\n
          The complainant is working as a Deputy Manager and<\/p>\n
Legal advisor of the de jure complainant.  The accused  have<\/p>\n
obtained  a loan by availing bill discount facility  to  the<\/p>\n
tune  of Rs.1,00,00,849\/-.  To discharge the above said loan<\/p>\n
the  accused  have drawn a cheque for Rs.24,99,544\/-.   When<\/p>\n
the  said  cheque  was presented in Canara Bank  Azhagapuram<\/p>\n
branch  on  14.08.1996,  the  same  was  returned  with   an<\/p>\n
endorsement that there is no sufficient funds in the account<\/p>\n
of  the  accused.  Even after knowing that  the  cheque  was<\/p>\n
bounced,  the accused have not cared to discharge the  loan.<\/p>\n
The complainant issued a notice on 23.08.1996 to the accused<\/p>\n
which  was received by the accused on 24.08.1996,   but  the<\/p>\n
accused have not chosen to send neither reply nor repaid the<\/p>\n
debt  amount.   Hence  the complainant  has  preferred  this<\/p>\n
complaint  under  Section138 of the  Negotiable  Instruments<\/p>\n
Act.\n<\/p>\n<\/p>\n
      3.  After  taking the sworn statement of the  defacto-<\/p>\n
complainant,   the   complaint  was   taken   on   file   as<\/p>\n
C.C.No.147\/1996  by the learned Judicial Magistrate  and  on<\/p>\n
appearance  of  the  accused copies  under  Section  207  of<\/p>\n
Cr.P.C. were furnished to the accused.  When the offence was<\/p>\n
explained  to the accused they pleaded not guilty.   On  the<\/p>\n
side  of  the complainant P.W.1 was examined and Exs.P.1  to<\/p>\n
P.10 were marked.\n<\/p>\n
     4. P.W.1,  defacto-complainant, would depose that he is<\/p>\n
working  as an Assistant Manager of the de jure complainant-<\/p>\n
company  and  Ex.P.1 is the power of attorney given  in  his<\/p>\n
name,  attested by notary public, authorising him to  prefer<\/p>\n
this complaint on behalf of the de jure complainant-company.<\/p>\n
He  would depose that A2 to A5 are Directors of the  Company<\/p>\n
and  only at the request of A2 to A5 on behalf of the  first<\/p>\n
accused   bill  discounting facility  was  provided  to  the<\/p>\n
accused  by  the de jure complainant-company and that  after<\/p>\n
availing   bill  discounting  facility  to   the   tune   of<\/p>\n
Rs.1,00,00,849\/-, the accused have executed hundials  No.11,<\/p>\n
13  &  14 on 25.06.1996, but as per the terms and conditions<\/p>\n
of  the  said hundials the accused failed to repay the  debt<\/p>\n
and  after  repeated  demand, A3  had  drawn  a  cheque  for<\/p>\n
Rs.24,99,544\/-  in favour of the complainant  and  when  the<\/p>\n
said  cheque(Ex.P.2)  was  presented  in   Canara  Bank   on<\/p>\n
14.08.1996 the said cheque was returned by saying  there  is<\/p>\n
no  sufficient funds in the accounts of the accused.  Ex.P.3<\/p>\n
is  the  memo to that effect issued by the Bank.  Ex.P.4  is<\/p>\n
the  debit advoice dated 16.8.1996.  Even after the fact  of<\/p>\n
dishonouring  of  the  cheque was informed  to  the  accused<\/p>\n
through  a notice dated 23.08.1996 under Ex.P.5 the  accused<\/p>\n
have   not  repaid  the  debt  amount.   Ex.P.6(series)   is<\/p>\n
acknowledgments.  Ex.P.7 to P.10 are the certified copies of<\/p>\n
the  hundial issued by the accused in favour of the de  jure<\/p>\n
complainant-company.\n<\/p>\n
      5.  When incriminating circumstances were put  to  the<\/p>\n
accused, the accused denied their complicity with the crime.<\/p>\n
After  going  through  the available  evidence  the  learned<\/p>\n
Magistrte has come to a conclusion that A1 and the signatory<\/p>\n
in  Ex.P.2-cheque dated 14.08.1996, which was dishonoured by<\/p>\n
the  Bank  i.e  A3  alone are guilty of  the  offence  under<\/p>\n
Section  138  of  NI  Act  and  consequently  convicted  and<\/p>\n
sentenced  A1 and A3 to pay a fine of Rs.12,500\/- each  with<\/p>\n
default  sentence and acquitted A1, A4 & A5.   Aggrieved  by<\/p>\n
the findings of the learned trial Judge against A2 , A4 & A5<\/p>\n
alone this appeal has been preferred by the complainant.<\/p>\n
      6.  Now the point for determination in this appeal  is<\/p>\n
whether A2, A4, & A5 are also guilty under Section 138 of NI<\/p>\n
Act?\n<\/p>\n<\/p>\n
     7. I have heard the submissions of Mr.T.S.Ramarathinam,<\/p>\n
learned  counsel  for the appellant and  Mr.AR.L.Sundaresan,<\/p>\n
Senior  Cousel, appearing for the respondents and considered<\/p>\n
their respective submissions.\n<\/p>\n<\/p>\n
     8. The Point:-\n<\/p>\n
           8(a)    Against the conviction against them,   A1<\/p>\n
and A3 have preferred an appeal in C.A.No.70\/1999 before the<\/p>\n
Additional  Sessions Judge, Coimbatore,  but  the  same  was<\/p>\n
dismissed   on  1.10.1999.   Against  that  no  appeal   was<\/p>\n
preferred.\n<\/p>\n
           8(b)   The  learned  counsel  appearing  for  the<\/p>\n
appellant  would contend that A2, A4 & A5 are all the  other<\/p>\n
Directors of A1-company and only at their request they  were<\/p>\n
given   bill   discounting  facility    to   the   tune   of<\/p>\n
Rs.1,00,00,849\/-   and   after  availing   the   said   bill<\/p>\n
discounting  facility,  they have executed  Ex.P.7  to  P.10<\/p>\n
hundials  and  hence they are also to be held  guilty  under<\/p>\n
Section  138  of  NI Act.  Section 138 of  NI  Act  runs  as<\/p>\n
follows:-\n<\/p>\n
           “Dishonour  of  cheque  for  insufficiency,
\n           etc., of funds in the account –\n<\/p><\/blockquote>\n
           Where  any cheque drawn by a person  on  an
\n     account  maintained  by him  with  a  banker  for
\n     payment of any amount of money to another  person
\n     from  out  of that account for the discharge,  in
\n     whole or in part, of any debt or other liability,
\n     is returned by the bank unpaid, either because of
\n     the  amount  of money standing to the  credit  of
\n     that account is insufficient to honour the cheque
\n     or that it exceeds the amount arranged to be paid
\n     from  that account by an agreement made with that
\n     bank,  such  person  shall  be  deemed  to   have
\n     committed an offence and shall, without prejudice
\n     to  any  other provision of this Act, be punished
\n     with imprisonment for a term which may extend  to
\n     two  year, or with fine which may extend to twice
\n     the amount of the cheque, or with both”\n<\/p><\/blockquote>\n
           Provided  that  nothing contained  in  this
\n     section shall apply unless –\n<\/p><\/blockquote>\n
           (a)  the cheque has been presented  to  the
\n     bank  within a period of six months from the date
\n     on  which it is drawn or within the period of its
\n     validity, whichever is earlier;\n<\/p><\/blockquote>\n
          (b) the payee or the holder in due course of
\n     the  cheque, as the case may be, makes  a  demand
\n     for  the  payment of the said amount of money  by
\n     giving a notice in writing, to the drawer of  the
\n     cheque,  within  thirty days of  the  receipt  of
\n     information  by him from the bank  regarding  the
\n     return of the cheque as unpaid; and\n<\/p><\/blockquote>\n
           (c) the drawer of such cheque fails to make
\n     the  payment of the said amount of money  to  the
\n     payee  or,  as the case may be, to the holder  in
\n     due  course of the cheque within fifteen days  of
\n     the receipt of the said notice.\n<\/p><\/blockquote>\n
           Explanation  –  For  the  purpose  of  this
\n     section,  ‘debt  or  other  liability’  means   a
\n     legally enforceable debt or other liability.\n<\/p><\/blockquote>\n
The  learned  counsel also had drawn the attention  of  this<\/p>\n
Court  to Section 141 of the NI Act and contended that every<\/p>\n
person  who, at the time the offence was committed,  was  in<\/p>\n
charge  of,  and  was  responsible to the  company  for  the<\/p>\n
conduct  of  the  business of the company, as  well  as  the<\/p>\n
company,  shall  be deemed to be guilty of the  offence  and<\/p>\n
shall  be  liable  to  be  proceeded  against  and  punished<\/p>\n
accordingly.\n<\/p>\n<\/p>\n
           8(c)  On  the  other hand learned senior  counsel<\/p>\n
appearing for the respondents\/accused 2, 4 & 5 would contend<\/p>\n
that  even  the complaint was preferred against the  accused<\/p>\n
only under Section 138 of the NI Act and except at para 2 of<\/p>\n
the complaint that A2, A4 & A5 are directors of the company,<\/p>\n
there is no specific averment in the complaint regarding the<\/p>\n
overtact of A2, A4 & A5.  The trial Court has held  that  A3<\/p>\n
guilty  on  the ground that, he as one of the Directors  has<\/p>\n
signed in Ex.P.2-cheque dated 14.8.1996.  The learned senior<\/p>\n
counsel  for the respondent  relying on 2005 SCC (Cri)  1975<\/p>\n
(S.M.S.   Pharamaceuticlas  Ltd.,  Vs.  Neeta   Bhalla   and<\/p>\n
another),  contended that it is necessary  to  aver  in  the<\/p>\n
complaint  that  at the time the offence was  committed  the<\/p>\n
person  accused  was in charge of, and responsible  for  the<\/p>\n
conduct  of  business  of the company and  without  averment<\/p>\n
being  made  in the complaint the requirements of Section141<\/p>\n
cannot  be said to be satisfied.   The exact observation  in<\/p>\n
the above said judgment runs as follows:-<\/p>\n
          “The  normal  rule  in the  cases  involving
\n    criminal    liability   is    against    vicarious
\n    liability,  that  is,  no  one  is  to   be   held
\n    criminally  liable for an act  of  another.   This
\n    normal  rule is, however, subject to exception  on
\n    account  of specific provision being made  in  the
\n    statutes  extending liability to others.   Section
\n    141   of  the  Act  is  an  instance  of  specific
\n    provision  which in case an offence under  Section
\n    138  is  committed by a company, extends  criminal
\n    liability  for dishonour of a cheque  to  officers
\n    of  the  company.  Section 141 contains conditions
\n    which  have  to be satisfied before the  liability
\n    can  be  extended to officers of a company.  Since
\n    the  provision  creates  criminal  liability,  the
\n    conditions  have  to  be strictly  complied  with.
\n    The  conditions  are intended to  ensure  that   a
\n    person  who  is  sought  to  be  made  vicariously
\n    liable  for  an  offence of  which  the  principal
\n    accused  is  the company, had a role  to  play  in
\n    relation  to  the  incriminating act  and  further
\n    that  such a person should know what is attributed
\n    to  him  to  make  him liable.   In  other  words,
\n    persons who had nothing do do with the mater  need
\n    not  be  roped  in.   A company being  a  juristic
\n    person,  all  its  deeds  and  functions  are  the
\n    result of acts of others.  Therefore, officers  of
\n    a  company  who are responsible for acts  done  in
\n    the  name  of the company are sought  to  be  made
\n    personally  liable  for  acts  which   result   in
\n    criminal  action being taken against the  company.
\n    It  makes  every  person  who,  at  the  time  the
\n    offence  was committed, was in charge of, and  was
\n    responsible  to  the company for  the  conduct  of
\n    business  of the company, as well as the  company,
\n    liable for the offence.”\n<\/p><\/blockquote>\n
So  it is clear from the above said dictum that it is to  be<\/p>\n
proved by the complainant that every person who at the  time<\/p>\n
when the offence was committed was in charge of the company,<\/p>\n
and  was  responsible  to the company  for  the  conduct  of<\/p>\n
business  of  the  company as well as the company,  to  rope<\/p>\n
into the offence.  Even a perusal of hundials in the case on<\/p>\n
hand  viz.  Ex.P.7  to P.10, would go to show  that  A3  has<\/p>\n
signed in each of those hundials and not the other Directors<\/p>\n
viz. A2, A4 & A5.\n<\/p>\n<\/p>\n
            8(d)   The  learned  senior  counsel   for   the<\/p>\n
respondents  relied  on 2006(4) CTC 489 (Sabitha  Ramamurthy<\/p>\n
and  another  Vs. R.B.S.Channabasavaradhya),  and  contended<\/p>\n
that the averments in the complaint must be to show that all<\/p>\n
the  Directors  are  responsible to  clear  liability  under<\/p>\n
dishonoured  instrument  and  if  the  complaint   has   not<\/p>\n
satisfied the requirements of law, the complaint  is  to  be<\/p>\n
quashed.  The  exact observation in the above said  judgment<\/p>\n
runs as follows:-\n<\/p>\n
          “Section  141  raises a legal  fiction.   By
\n    reason  of  the said provision, a person  although
\n    is  not  personally liable for commission of  such
\n    an  offence would be vicariously liable  therefor.
\n    Such  vicarious liability can be inferred  so  far
\n    as  a company registered or incorporated under the
\n    Companies  Act,  1956  is concerned  only  if  the
\n    requisite  statements, which are  required  to  be
\n    averred in the Complaint Petition, are made so  as
\n    to  make  the  accused therein vicariously  liable
\n    for  the offence committed by the company.  Before
\n    a  person  can be made vicariously liable,  strict
\n    compliance of the statutory requirements would  be
\n    insisted.”\n<\/p><\/blockquote>\n
In  the case on hand also there is absolutely no averment in<\/p>\n
the   complaint   against  A2,  A4  &  A5  regarding   their<\/p>\n
involvement in the offence under Section 138 of the NI Act.<\/p>\n
           8(e)  While deciding an appeal against acquittal,<\/p>\n
as  per the ratio decidendi laid down in 2003 SCC (Cri)  161<\/p>\n
(C.Antony Vs. K.g.Raghavannair), we have to see whether  the<\/p>\n
findings of the trial Court is perverse or contrary  to  the<\/p>\n
materials   on  record.   The  exact  observation   of   the<\/p>\n
Honourable  Apex  Court in the above  said  dictum  runs  as<\/p>\n
follows:-\n<\/p>\n
          “The  High Court had lost sight of the  fact
\n    that  it was sitting as an appellate court against
\n    a   judgment  of  acquittal passed  by  the  trial
\n    Court,  therefore, there was an obligation on  the
\n    part  of  the  High  Curt to come  to  a  definite
\n    conclusion  that the findings of the  trial  Court
\n    are  either  perverse or the same are contrary  to
\n    the  material  on record because  the  High  Court
\n    could  not  have  substituted its  finding  merely
\n    because  another  contrary  opinion  was  possible
\n    based  on the material on record.   It   was   the
\n    duty  of  the  High Court to have first
\n    come   to  the  conclusion  that  the  conclusions
\n    arrived  at  by the trial Court for  good  reasons
\n    are   either  unreasonable  or  as  stated  above,
\n    contrary  to  the  material  on  record.   In  the
\n    absence  of  any such finding in our opinion,  the
\n    High  Court  was in error in taking a  contra-view
\n    merely  because another view was possible  on  the
\n    material on record.”\n<\/p><\/blockquote>\n
In  view  of  the  above discussion, I am of the  considered<\/p>\n
opinion  that it cannot be said that A2, A4 &  A5  are  also<\/p>\n
guilty  under Section 138 of the NI Act.  The learned  trial<\/p>\n
Judge  has  considered all those point and  has  come  to  a<\/p>\n
correct conclusion that the other Directors except A3 are in<\/p>\n
no  way connected with the offence and has rightly dismissed<\/p>\n
the  complaint against A2, A4 & A5, which does  not  warrant<\/p>\n
any   interference  from  this  Court.   Point  is  answered<\/p>\n
accordingly.\n<\/p>\n<\/p>\n
      11.  In the result, the appeal is dismissed confirming<\/p>\n
the  judgment  in   C.C.No.447 of 1996 on the  file  of  the<\/p>\n
Judicial Magistrate No.VI, Coimbator.<\/p>\n
ssv<\/p>\n
To,<\/p>\n
The Judicial Magistrate No.VI,
\nCoimbator.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court M\/S Elgi Finance Limited vs R.Prabakaran on 22 January, 2007 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 22.01.2007 CORAM: THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN Crl.A.No.133 of 2000 M\/s Elgi Finance Limited, rep by its Asst. Manager – Legal and Authorised Representative Mr.P.N.Krishnamoorthy ..Appellant\/Complainant vs. 1.R.Prabakaran 2.Ms.R.P.Sudha 3.C.Dhanasekaran ..Respondents\/Accused 2, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-108410","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nM\/S Elgi Finance Limited vs R.Prabakaran on 22 January, 2007 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ms-elgi-finance-limited-vs-r-prabakaran-on-22-january-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"M\/S Elgi Finance Limited vs R.Prabakaran on 22 January, 2007 - 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