Madras High Court
Mrs.Sumathi K.Prasath vs Mrs.Damayanthi on 7 December, 2021
Crl.O.P. No.26174 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 07.12.2021
CORAM
THE HONOURABLE MR.JUSTICE N. SATHISH KUMAR
Crl. O.P. Nos.26174 of 2017
and CRL.M.P.Nos.15053 &15054 of 2017
Mrs.Sumathi K.Prasath ...Petitioner
Vs.
Mr.V.Palanisamy(Deceased)
Represented by his legal heirs vide order dated 21.08.2017
of Hon'ble Judicial Magistrate, Udumalpet
1.Mrs.Damayanthi
2.Mrs.Selvi
3.Mr.Ramesh
4.Ms.Nithya ...Respondents
PRAYER: Criminal Original Petition filed under Section 482 of Criminal
Procedure Code, praying to call for the records and quash the complaint in
C.C.No.356 of 2006 now pending before the learned Judicial Magistrate-I,
Udumalpet.
For Petitioner : Mr.B.Natarajan
For Respondents : Mr.P.M.Duraisamy
https://www.mhc.tn.gov.in/judis
Page 1 of 6
Crl.O.P. No.26174 of 2017
ORDER
This petition has been filed to quash the proceedings under Section 138
against the petitioner herein mainly on the ground that there is no averments
made in the complaint to the effect that the present petitioner is the incharge or
responsible over the company affairs at the relevant point of time.
The A2/Managing Director borrowed money from the complainant and when
pressed for repayment, he issued the cheques of the A1 company.
2. The brief facts of the case leading to filing of the complaint is that the
accused 2 is the family friend to defacto complainant and he has borrowed a
total sum of Rs.2,00,000 /-(Rupees Two Lakhs only) on various occasions for
the benefit and improvement of accused No.1 company and executed a
promissory settlement. Thereafter, he issued the impugned cheques for a total
sum of Rs.2,00,000/- with the knowledge of accused 3 and 4, who are the
Directors of accused No.1 company. Hence, private complaint has been filed
after complying the mandatory provisions for the initiation of the complaint
under Section 138 of the Negotiable Instruments Act.
https://www.mhc.tn.gov.in/judis
Crl.O.P. No.26174 of 2017
3. It is the contention of the learned counsel for the petitioner that the
allegations itself clearly indicates that the amount has been borrowed only by
the 2nd accused in his individual capacity. There is no averment as to the role of
the others, particularly, the petitioner herein in respect of the borrowal or
issuance of the cheque. In the absence of any pleadings in the complaint as to
the role of the present petitioner, she cannot be prosecuted for the offence under
Section 138 of Negotiable Instruments Act.
4. The learned counsel for the respondent submitted that there are
necessary averments in the complaint to show that the petitioner is involved in
the issuance of cheque and also is the incharge of the company. Hence, because
of mere non-reproduction of the words under Section 141 of the N.I. Act, it
cannot be said that the present petitioner cannot be prosecuted for the offence at
all. Whether all the directors are incharge or at the helm of the affairs of the
company is a matter of evidence. Therefore, at this stage, the complaint cannot
be quashed.
5. Heard the learned counsel on either side and perused the entire
materials available on record.
https://www.mhc.tn.gov.in/judis
Crl.O.P. No.26174 of 2017
6. On a perusal of the complaint, it indicates that the amount has been
borrowed personally by the accused 2 since there is a friendly relationship
between the defacto complainant and 2nd accused. Except contending that the
issuance of the cheque is also by the 2nd accused, as against the other directors,
there is no serious allegation made out as to their role in day to day affairs of the
company. Therefore, merely making some allegations that they are also
administering the company without making the necessary pleadings that they
have a specific role in the administration of the company, as a matter of right,
they cannot be prosecuted. Since, the penal action is very severe in nature, there
must be necessary averments to proceed against a person for penal action. In
this regard, the judgment of the Hon'ble Apex Court reported in 2009(3) SCC
(Cri) 23 in the case of Ramrajsingh Vs State of M.P reads as follows:
8.To launch a prosecution against the alleged Directors
of a company, there must be a specific allegation in the
complaint as to the part played by them in the transaction.
There should be clear and unambiguous allegation as to how
the Directors are incharge and responsible for the conduct of
the business of the company. The description should be clear.
It is true that precise words from the provisions of the Act
need not be reproduced and the Court can always come to a
https://www.mhc.tn.gov.in/judis
Crl.O.P. No.26174 of 2017
conclusion in facts of each case. But still in the absence of
any averment or specific evidence the net result would be that
complaint would not be entertainable.
7. When the complaint is scanned by this Court, the amount itself
is borrowed by A2. Though, it is stated that it for the uplift of the company,
except stating that the other directors were incharge of the company at the time
of issuance of the cheque, the specific role played by them in the affairs of the
company has not been narrated. In such view of the matter, continuation of the
prosecution against the present petitioner is against the well settled provision of
law. Accordingly, the proceedings against this petitioner alone is quashed and
as a sequel, this Criminal Original Petition is allowed. Consequently connected
miscellaneous petitions are closed.
07.12.2021
Index: Yes/No
Internet: Yes/No
msv/nr
https://www.mhc.tn.gov.in/judis
Crl.O.P. No.26174 of 2017
N. SATHISH KUMAR, J.
msv/nr
Crl. O.P. Nos.26174 of 2017
and CRL.M.P.Nos.15053 &15054 of 2017
07.12.2021
https://www.mhc.tn.gov.in/judis
