Judgment:
Thangamani, J.
1. On November 4, 1991, and on November 15, 1991, the petitioner issued two cheques for Rs. 2,00,000 each drawn on the Federal Bank Limited, Anna Nagar, in favour of the complainant. The cheques were presented on December 11, 1991, and they were dishonoured. The respondent again presented the cheques on January 18, 1992, and they were dishonoured on January 20, 1992, on the ground that there were no sufficient funds in the account of the drawer. On February 5, 1992, the respondent telegraphically called upon the petitioner to pay the amount due on the cheques. The petitioner acknowledged the receipt of the telegram on the same day, but failed to pay the cheque amount. So, the respondent preferred a private complaint in C. C. No. 1737 of 1992 in the Court of the XVIII Metropolitan Magistrate, Saidapet, Madras, which was taken on file under section 138 of the Negotiable Instruments Act.
2. The petitioner submits that he is the chairman of the Vellammal Educational Trust. The respondent offered to sell his lands for the purpose of constructing an engineering college by the trust for a sum of Rs. 8,65,810. On October 21, 1991, sale deed was executed in respect of an area of 135 acres. On the date of the sale deed, the petitioner paid Rs. 4,65,000 in cash and gave the two cheques above referred to. Subsequently, the petitioner came to know that the respondent had no title to convey the land. So the petitioner asked the respondent to return the cash of Rs. 4,65,000 and not to present the two cheques for payment. However, the respondent assured that he would arrange for the issue of patta in favour of the petitioner, using his influence with Government officials. For that purpose, he received an additional amount of Rs. 10,000 from the petitioner towards expenses. But the respondent did not keep up his promise. Only in order to prevent the petitioner from taking legal proceedings against him, he has now chosen to file the complaint. Hence, the proceedings in C. C. No. 1737 of 1992, on the file of the XVIIIth Metropolitan Magistrate, Saidapet, have to be quashed under section 482 of the Criminal Procedure Code.
3. Learned counsel for the petitioner argues that the cheques were dishonoured on January 20, 1992, but the notice of demand was sent by the respondent only on February 5, 1992, which is after the expiry of fifteen days prescribed under proviso (b) to section 138 of the Negotiable Instruments Act and so the complaint instituted on February 27, 1992, does not satisfy the requirements of that section. The Act stipulates that the holder of the cheque makes a demand for the payment of money covered by the cheque by giving a notice in writing to the drawer within fifteen days of the receipt of information by him from the bank regarding the return of the cheques as unpaid. As pointed out by learned counsel for the respondent, 'notice in writing' which is required under section 138(b) of the Negotiable Instruments Act need not necessarily be only by registered post, and it can as well be by a telegram or by a letter, vide V. P. Revathi v. Asha Bagree [1991] LW (Crl.) 468; [1992] 75 Comp Cas 372. And we find from the records that on January 21, 1992, the cheques were returned to the payee unhonoured. And the required telegram has been sent on the fifteenth day which is February 5, 1992. So the notice satisfies the stipulations contained in section 138 of the Negotiable Instruments Act.
4. Thiru Karpagavinayagam, learned counsel for the petitioner, next submits that the cheques herein have been issued by the petitioner in his capacity as the chairman of the Vellammal Educational Trust. They were also drawn on the account of the said trust with the Federal Bank Limited. Whereas the complaint has been referred against M. V. Muthuramalingam, the petitioner herein in his individual capacity. The person who has committed the offence is the chairman of the Educational Trust. Under section 138 of the Negotiable Instruments Act the dishonoured cheque should have been drawn by a person on an account maintained by him with the banker for payment of any amount of money to another person from out of that account. So the complaint could only be against the account holder. And since Vellammal Trust is the account holder and not the petitioner, Muthuramalingam, this complaint is unsustainable. He also points out that a trust cannot be equated with a company registered under the Indian Companies Act. There is no other provision in the Negotiable Instruments Act akin to that of section 141 of this Act under which a trustee could be made liable for the act of the trust.
5. In Jethabhai v. Bipinchandra, : AIR1968Guj183 a charge was framed under section 406 of the Indian Penal Code on the basis of the complaint that some amount was realise during the business of the firm of which the accused was the managing Director. The charge-sheet was quashed for the reason that before the accounts are taken, there cannot be a criminal complaint of misappropriation of a sum admittedly received during the partnership, unless there is evidence to show that the money was specially entrusted to the applicant. But the facts in the present case and point involved are different and evidently this decision cited by the petitioner cannot help him in any manner.
6. In U. P. Pollution Control Board v. Modi Distillery , it has been held where an offence is committed by a company, every person who at the time of the commission of the offence was in charge of and responsible to the company for the conduct of the business of the company, as well as the company, shall be liable to be proceeded against. We have already seen that the analogy at a company cannot be invoked in this case.
7. The next decision cited by learned counsel for the petitioner is that in Thomas Varghese v. P. Jerome [1992] 2 Crimes 919; [1993] 76 Comp Cas 380. That case relates to the rights of the complainant to initiate proceedings under section 138 of the Act when the complainant has specifically stated that the accused had no amount in his account with the bank for honouring the cheque. This does not relate to the point in dispute and hence is not relevant for the present case.
8. In K. Krishan Buoy v. Arti Press [1991] LW (Crl.) 513; [1994] 80 Comp Cas 750, the company which had committed the offence was not the accused. The cheque was issued by the managing director of S company who was also the managing director of G company for meeting the liability owed by S company. In the petition to quash the complaint it was contended for the accused that according to the complaint, the cheque was issued by G company which owed no debt to the complainant whereas the liability was that of G company and as such, the petitioner who was shown as the managing director of S company cannot be prosecuted. Held, that even though the accused has signed the cheque as the managing director of G company, since the G company is not an accused, the person who is in charge and who is responsible to the company for the conduct and business of the company cannot be made as an accused. This case also cannot help the petitioner since section 141 of the Act has no application to the present case.
9. Learned counsel for the respondent submits that even in the complaint he has stated the role played by the petitioner which makes him liable for the offence punishable under section 138 of the Act. This respondent was only a power of attorney-holder to sell and execute the sale deeds on behalf of the real owners of the property on receiving the sale price. The dishonoured cheques have no connection whatsoever with regard to the balance sale price of Rs. 4,00,000 out of the total consideration of Rs. 8,65,810. The cheques were issued only towards the repayment of loan amount advanced to the petitioner herein by this respondent. Evidently, this is not a matter to be considered at this stage and the circumstances in which the cheques came to be issued and whether they were re-presented on January 18, 1992, at the request of the drawer could be decided only during the trial.
10. Further, as rightly urged by learned counsel for the respondent, unlike a company registered under the Indian Companies Act, the trust is not a juristic person having a separate legal entity. It can act only through its trustees. So, when the petitioner came to issue the impugned cheques and that has resulted in his committing an offence under section 138 of the Negotiable Instruments Act, he is liable to be proceeded against. The failure to describe him in the relevant complaint as the trustee of Vellammal Trust is of no consequence. So I find no merit in the contention of the petitioner.
11. In the result, the petition is dismissed.