Crl.O.P.No.22779 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 21.09.2022
CORAM:
THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN
Crl.O.P.No.22779 of 2022
and Crl.M.P.Nos.14605 and 14606 of 2022
P.Dhivya @ Dhivyalakshmi ... Petitioner
Vs.
G.Thangadurai ... Respondent
PRAYER: Criminal Original Petition filed under Section 482 of Cr.P.C.
praying to call for the records in CC.No.27 of 2019 on the file of learned
Judicial Magistrate No-I, Mettur, Salem District and quash the same as
against the petitioner herein.
For Petitioner : Mr.M.R.Jothimanian
ORDER
This Criminal Original Petition has been filed calling for the records in CC.No.27 of 2019 on the file of learned Judicial Magistrate No-I, Mettur, Salem District and to quash the same. Page 1 of 6 https://www.mhc.tn.gov.in/judis Crl.O.P.No.22779 of 2022
2. The petitioner is an accused in the complaint lodged by the respondent for the offences punishable under Section 138 of Negotiable Instruments Act. The respondent lodged a complaint alleging that the petitioner had purchased a house property from the complainant, due to which she was acquainted with the complainant. On 02.09.2018, the petitioner borrowed a sum of Rs.75,000/- for her family and business expenses and also agreed to repay the said amount within a month. In order to repay the same, the petitioner issued a cheque for a sum of Rs.75,000/- to the respondent. The respondent presented the said cheque for collection and the same was returned dishonor for the reason “Funds Insufficient”. After causing statutory notice, the respondent filed a complaint for the offence under Section 138 of Negotiable Instruments Act, as against the petitioner.
3. The learned counsel for the petitioner would submit that the cheque was issued in the name of the company and even then the respondent failed to implead the company as a party to the present Page 2 of 6 https://www.mhc.tn.gov.in/judis Crl.O.P.No.22779 of 2022 impugned proceedings. The statutory notice was also not issued to the company, since the alleged cheque was issued on behalf of the company. He also raised another ground that there is a manipulation in the alleged cheque dated 08.11.2018. Hence, he prayed to quash the proceedings.
4. In support of his contention, he also relied upon the Judgment reported in 2005 (8) SCC in the case of “ S.M.S.Pharmaceuticals Ltd Vs Neeta Bhalla and Another”.
5. A perusal of the complaint revealed that the complaint has been filed for the offence under Section 138 of Negotiable Instruments Act as against the petitioner herein. The cheque dated 08.11.2018 was issued by the petitioner in the capacity of Proprietor of “Sri Dhivyalakshmi Trading and Contractors”. Therefore, it is not a company and also the complaint was filed only for the offence under Section 138 of Negotiable Instruments Act and not for the offence under Section 141 of Negotiable Instruments Act.
Page 3 of 6 https://www.mhc.tn.gov.in/judis Crl.O.P.No.22779 of 2022
6. Thus, it is clear that the petitioner is the Proprietor of “Sri Dhivyalakshmi Trading and Contractors” and there is no need to implead the Proprietor concern as accused, since she is a Proprietrix of “Sri Dhivyalakshmi Trading and Contractors”. The learned counsel for the petitioner also produced the registration certificate registered with the Commercial Taxes Department and it also revealed that the petitioner is a Proprietrix of “Sri Dhivyalakshmi Trading and Contractors”.
7. Therefore, the judgment cited by the learned counsel for the petitioner is not applicable to the case on hand. That apart, another ground raised by the petitioner is that there is a manipulation in the alleged cheque and the same cannot be considered by this Court. Therefore, there is absolutely no ground to quash the proceedings.
8. In view of the above discussion, this Court is not inclined to quash the proceedings in CC.No.27 of 2019 on the file of learned Judicial Magistrate No-I, Mettur, Salem District. The personal appearance of the petitioner is dispensed with and she shall be Page 4 of 6 https://www.mhc.tn.gov.in/judis Crl.O.P.No.22779 of 2022 represented by a counsel after filing appropriate application. However, the petitioner shall be present before the Court at the time of furnishing of copies, framing charges, questioning under Section 313 Cr.P.C. and at the time of passing judgment. The trial Court is directed to complete the trial, within a period of three months from the date of receipt of a copy of this Order.
9. Accordingly, the Criminal Original Petition stands dismissed. Consequently, connected miscellaneous petitions are closed.
21.09.2022 Internet : Yes / No Index : Yes / No Speaking / Non Speaking order mn Page 5 of 6 https://www.mhc.tn.gov.in/judis Crl.O.P.No.22779 of 2022 G.K.ILANTHIRAIYAN, J.
mn To
1. The Judicial Magistrate No-I, Mettur, Salem District.
2. The Public Prosecutor, High Court, Madras.
Crl.O.P.No.22779 of 2022 and Crl.M.P.Nos.14605 and 14606 of 2022 21.09.2022 Page 6 of 6 https://www.mhc.tn.gov.in/judis