Madras High Court
V.Kalaivani vs K.Selvaraj on 16 December, 2021
CRL.O.P.No.23502 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 16.12.2021
CORAM:
THE HON'BLE MR.JUSTICE M.NIRMAL KUMAR
CRL.O.P.No.23502 of 2021
V.Kalaivani ... Petitioner
Versus
K.Selvaraj ... Respondent
PRAYER: Criminal Original Petition filed under Section 482 of the Code
of Criminal Procedure, to call for the records pertaining to the order
passed by the learned Principal District and Sessions Judge, Erode, in
Crl.M.P.No.2210 of 2021 in C.A.No.145 of 2021 dated 23.11.2021 in so
far as it relates to imposition of condition by directing the petitioner to
deposit 20% of the cheque amount before the Judicial Magistrate, Fast
Track Court No.II, Erode and set aside the same.
For Petitioner : Mr.C.Munusamy
*****
Page No.1 of 8
https://www.mhc.tn.gov.in/judis
CRL.O.P.No.23502 of 2021
ORDER
This Criminal Original Petition is filed to call for the records
pertaining to the order passed by the learned Principal District and
Sessions Judge, Erode, in Crl.M.P.No.2210 of 2021 in C.A.No.145 of
2021 dated 23.11.2021 in so far as it relates to imposition of condition by
directing the petitioner to deposit 20% of the cheque amount before the
Judicial Magistrate, Fast Track Court No.II, Erode and set aside the same.
2.The petitioner is an accused in a 138 case filed by the respondent
in S.T.C.No.87 of 2016, was convicted by the learned Judicial Magistrate,
Fast Track Court, Erode by Judgment dated 26.10.2021, wherein the trial
Court had directed the petitioner to undergo simple imprisonment for six
months and ordered him to pay a sum of Rs.10,00,000/- towards
compensation to the respondent, within a period of three months,
Aggrieved against the same, the petitioner had preferred an appeal before
the Principal Sessions Judge, Erode in C.A.No.145 of 2021 and also filed
a petition in Crl.M.P.No.2210 of 2021 to suspend the sentence of
imprisonment. The sentence of the trial court was suspended by the
https://www.mhc.tn.gov.in/judis
CRL.O.P.No.23502 of 2021
lower appellate Court with certain conditions. One of the condition was
that the petitioner to deposit 20% of the cheque amount i.e. Rs.2,00,000/-
to be deposited before the trial Court in terms of Section 148 of the
Negotiable Instruments Act, within a period of 30 days from the date of
receipt of the copy of that order. The petitioner is unable to deposit the
said 20% of the compensation. Against which, the present petition is
filed.
3.The contention of the petitioner is that the petitioner's husband
Viswanathan (Late) had taken some loan from the respondent, for which
the cheque was given as security. The petitioner does not know the
respondent and she has no contact with the respondent and there was no
business transaction between the petitioner and the respondent. She does
not know for what reason the cheque had been given by her husband to
the respondent and the said liability was also not known to the petitioner.
She further submitted that the petitioner's husband and the respondent
would have had some business transaction and her husband is now no
more. The primary point in which the petitioner assails before the trial
https://www.mhc.tn.gov.in/judis
CRL.O.P.No.23502 of 2021
Court as well as before the lower appellate court is that the cheque had
been drawn in the name of Southern Electronics and not in the name of
the respondent, for a sum of Rs.10,00,000/- and a complaint has been
filed by the respondent i.e. Selvaraj claimed him to be the Proprietor of
Southern Electronics. But he has not produced either the Photostat
copies of materials to show that he is the proprietor of Southern
Electronics, or the Commercial Tax Registration Certificate, registering
the proprietorship with any of the authorities.
4.He further contended that even in the complaint the inclusion of
Proprietor Southern Electronics has been made by pen. Hence, the
complaint is not a valid proof to show that the Souther Electronics is a
proprietorship concern. When the same was questioned, the respondent
was unable to give any proper answer. This point was though raised by
the trail Court in paragraph No.37 of the Judgment, referring to the
Judgment of this Court in the case of R.Sundar Vs. M/s. Agarwal Coal
Corporation Pvt. Ltd., wherein this Court held as follows:
“6.Even though, it is a settled law that a
https://www.mhc.tn.gov.in/judis
CRL.O.P.No.23502 of 2021
company, which is incorporated under the
Companies Act, is a separable legal entity, but,
a sole proprietorship is concerned, it is not so.
Mere registration of trader with the
Government of Tamilnadu Commercial Tax
Department in the name of 'Hari Treders', will
not be construed as a company incorporated
under the provisions of Companies Act.”
Here the case is not whether the petitioner is a proprietorship
concern or a company.
5.The learned counsel appearing for the petitioner categorically
stated that the Southern Electronics, a Proprietorship firm had not
prosecuted the petitioner. As per Section 141 of the NI Act, the firm or
other association has to be construed as company and the procedure is to
be followed. First the complainant has to prove that it is a firm including
Proprietorship firm. In view of the same, the fundamental aspect is not
complied. The trial Court had not considered the same in its proper
perspective. The evidence of PW1 had not been discussed at all. The
lower court reasoning that during 313 questioning of the petitioner, the
https://www.mhc.tn.gov.in/judis
CRL.O.P.No.23502 of 2021
petitioner had given a answer that the said cheque has been given by her
husband as security for the purpose of obtaining loan. Hence admission
made. Further presumption under Sections 118 and 139 of the NI Act, is
against the petitioner is not correct. The basic fundamental aspects have
to be proved with regard to the transaction and cheque, thereafter only
presumption comes to play. In this case basic, foundational, fundamental
aspect not proved. The lower appellate court without going into the
merits of the case, following Section 148 of NI Act, had directed the
petitioner to deposit 20% of the cheque amount.
6.Considering the submissions and on perusal of the materials, this
Court finds that there is a fundamental error in the case, which has not
been properly addressed by the trial Court. This Court finds force in the
submissions of the learned counsel appearing for the petitioner, further
this Court have dealt that Section 148 of the NI Act is not mandatory in
all cases. It depends upon the facts of the case. In this case the
foundational aspect is shaky not proved. The trial Court failed to address
this issue by proper analyze of the evidence and materials. In view of the
https://www.mhc.tn.gov.in/judis
CRL.O.P.No.23502 of 2021
same, the condition to direct the petitioner to deposit 20% of the cheque
amount, before the learned Judicial Magistrate, Fast Track Court No.II,
Erode imposed by the lower appellate court is hereby set aside.
7.Accordingly, this Criminal Original Petition stands allowed. The
petitioner is directed to execute the sureties within a period of two weeks
from the date of receipt of a copy of this order. The reference made
above are for the limited purpose of disposing of this petition. The issue
to be decided by the lower appellate court independently uninfluenced by
any reference made above.
16.12.2021 Index: Yes/No
Internet: Yes/No
ah
To
1.The Principal District and Sessions Judge,
Erode.
2.The Judicial Magistrate,
Fast Track Court No.II,
Erode.
https://www.mhc.tn.gov.in/judis
CRL.O.P.No.23502 of 2021
M.NIRMAL KUMAR, J.
ah
CRL.O.P.No.23502 of 2021
16.12.2021
https://www.mhc.tn.gov.in/judis
