N. HARIHARA KRISHNAN versus J. THOMAS

N. HARIHARA KRISHNAN versus J. THOMAS

In the facts of this case, the application under Section 319 Cr.P.C. was a device to initiate prosecution against the company (DAKSHIN) beyond the limitation period prescribed by Section 142 of the Negotiable Instruments Act. There is no reason to condone the delay. Under Section 138, prosecution is person-specific, and the concept of cognizance of the offence (but not the offender) is not correct. For prosecution, all factual ingredients including the identity of the drawer must be evident in the complaint. The High Court’s view that cognizance of offence suffices even without cognizance of accused is erroneous in this statutory context. The appeal is allowed, the impugned order is set...

Parties
Appellant: N. Harihara Krishnan; Respondent: J. Thomas
Jurisdiction
India
Judgment Date
30 August 2017
Procedural Posture
Criminal Appeal / Final Judgment on Appeal Against High Court Order
Outcome
Appeal allowed; High Court judgment set aside.
Legal Topics
Negotiable Instruments Act, Prosecution Under Section 138, Limitation of Complaints, Vicarious Liability of Directors, Cognizance of Offence
Criminal Law Commercial Law Negotiable Instruments Act Prosecution Under Section 138 Limitation of Complaints Vicarious Liability of Directors Cognizance of Offence

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Parties

N. Harihara Krishnan

Appellant

J. Thomas

Respondent

Procedural Posture

Criminal Appeal / Final Judgment on Appeal Against High Court Order

Legal Issues

  1. 1 Whether a complaint under Section 138 of the Negotiable Instruments Act can be initiated against a company beyond limitation by invoking Section 319 Cr.P.C.
  2. 2 Whether cognizance under Section 138 is taken of the offence or the offender
  3. 3 Whether a signatory director can be prosecuted without prosecuting the company (drawer of the cheque)

Ratio Decidendi

In the facts of this case, the application under Section 319 Cr.P.C. was a device to initiate prosecution against the company (DAKSHIN) beyond the limitation period prescribed by Section 142 of the Negotiable Instruments Act. There is no reason to condone the delay. Under Section 138, prosecution is person-specific, and the concept of cognizance of the offence (but not the offender) is not correct. For prosecution, all factual ingredients including the identity of the drawer must be evident in the complaint. The High Court’s view that cognizance of offence suffices even without cognizance of accused is erroneous in this statutory context. The appeal is allowed, the impugned order is set...

Court Disposition

Appeal allowed; High Court judgment set aside.

Orders

  • Impugned judgment set aside.
  • Costs quantified at Rs. 1,00,000/- (Rupees One Lakh Only).