Madras High Court
Mr.O.Venkatachalapathy vs G.Sarojini on 7 October, 2021
Crl.O.P.Nos.26090, 26094, 26098,
26099, 26100, 26102, 26892 and 26932 of 2018
THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 07.10.2021
CORAM
THE HONOURABLE MR. JUSTICE M.DHANDAPANI
Crl.O.P.Nos.26090, 26094, 26098, 26099, 26100, 26102,
26892 and 26932 of 2018
and
Crl.M.P.Nos.14978, 14979, 14980, 14982, 14983, 14984,
15520, 15521 15545, 15546 of 2018
Crl.O.P.No.26090 of 2018:
Mr.O.Venkatachalapathy .. Petitioner
Vs.
G.Sarojini .. Respondent
COMMON PRAYER: Criminal Original Petitions filed under Section 482
of the Code of Criminal Procedure, to call for the complaint and entire
records in S.T.C.Nos. 720, 721, 722, 724, 739, 740, 2687 and 2690 of 2017
on the file of the learned Judicial Magistrate No.III and IV, Salem.
For Petitioner in all petitions :Mr.J.Hariharan
For Respondent in all petitions: Mr.K.Selvaraj
1/1
https://www.mhc.tn.gov.in/judis/
Crl.O.P.Nos.26090, 26094, 26098,
26099, 26100, 26102, 26892 and 26932 of 2018
COMMONORDER
The petitioners have filed these petitions to call for the entire
records in pursuant to the criminal proceedings in S.T.C.Nos.720, 721, 722
724, 739, 740, 2687 and 2690 of 2017, pending trial on the file of the
Judicial Magistrate Court No.IV, Salem.
2. Facts
leading to the present round of litigation is that 1st
accused is a Partnership Firm, Accused 2 and 3 are partners and they are
doing wholesale silk saree business and participating in the day to day
affairs of the business. The accused used to borrow money from the
complainant very often and repaying it with interest at the rate of 18% per
annum. While so, the accused borrowed a sum of Rs.49,00,000/- from the
complainant on different occasions by way of various cheques and
thereafter, the complainant insisted the accused to re-pay the principal
amount, for which, the accused issued various cheques. However, the
cheques were dishonored. Thereafter, the complainant issued a legal notice
dated 09.09.2017, calling upon the accused to pay the value of the cheques.
https://www.mhc.tn.gov.in/judis/
Crl.O.P.Nos.26090, 26094, 26098,
26099, 26100, 26102, 26892 and 26932 of 2018
However they neither repaid the money nor sent any reply to the notice.
Hence, the complainant has lodged a private complaint before the Trial
Court. Challenging the same, the present petition is filed by the petitioner.
3. The learned counsel appearing for the petitioner / A3
submitted that apart from the above said facts, the petitioner is only a name
lending partner of the accused Company and he is not the signatory of the
accused Firm. All the business transactions are taken care of by the 2nd
accused and the petitioner never involved in the financial affairs of the
accused Company. Even then, the complainant has launched the present
complaint only with an intention to extract money from the petitioner.
Further, the petitioner\ herein being not involved in financial transaction of
the Company, lodging complaint against him is not maintainable.
4. The learned counsel appearing for the petitioner further
submitted that the 1st accused had moved an application before the Registrar
of Firms, where the petitioner was shown as the outgoing partner and such
an application was approved by the Registrar on 26.09.2017. Though the
https://www.mhc.tn.gov.in/judis/
Crl.O.P.Nos.26090, 26094, 26098,
26099, 26100, 26102, 26892 and 26932 of 2018
Registrar approved the same on 26.09.2017, the application shows the date
of ceasing to be a partner as 08.06.2017, much before the date of the
presentation of the cheques in question. Hence the respondent has no
legally enforceable debt against the petitioner and prays for allowing of
these petitions.
5. The learned counsel appearing for the respondent vehemently
opposed the submissions made by the learned counsel for the petitioner and
submitted that the petitioner being the partner of the Firm was also involved
in the entire day to day administration of first accused Firm. Further there
are lot of confusion with regard to the execution of the partnership deed in
between th petitioner and other accused persons and both A2 and A3
signed cheques on various occasions. When it is the claim of the petitioner
that 2nd accused is only administering the day to day financial activities,
signing of cheques by A3 shows the ill motive of the petitioner in cheating
the lenders. In the present case, the petitioner has borrowed huge amounts
from the defacto complainant and in order to clear the debts, the accused
have issued various cheques. Admittedly, the petitioner has filed application
https://www.mhc.tn.gov.in/judis/
Crl.O.P.Nos.26090, 26094, 26098,
26099, 26100, 26102, 26892 and 26932 of 2018
for dissolution of Firm on 26.09.2017, whereas the cheque was issued by
the accused persons on 14.07.2017, well before the date of dissolution of
Partnership Firm. Though it is claimed that the petitioner was relieved on
08.06.2017 itself and was not in the Firm at the relevant point of time and
further in the paper publication effected on 01.08.2021, it was also informed
through lawyer that the Partnership Firm got dissolved, subsequently
thereafter, through the paper publication effected on 05.08.2017 in tamil
daily, it was informed by the very same lawyer that they are continuing the
Partnership Firm, as decided by the partners, which shows the contradictory
stand taken by the petitioner in order which is nothing but an act to cheat
the lenders and hence strongly opposed to quash the complaint against the
petitioner.
6. This Court has considered the rival submissions and also
perused the materials available on record.
7. Though several grounds have been raised by the learned
counsel for the petitioner and the respondent, this Court is of the opinion
https://www.mhc.tn.gov.in/judis/
Crl.O.P.Nos.26090, 26094, 26098,
26099, 26100, 26102, 26892 and 26932 of 2018
that the dispute involved in the present case is a triable issue and the
grounds raised by the counsel for the petitioner are all factual in nature and
it requires appreciation of evidence and this Court cannot decide the same in
exercise of its jurisdiction under Section 482 of Criminal Procedure Code.
It is left open to the petitioner to raise all the grounds before the Court and
the same shall be considered on its own merits and in accordance with law.
This Court is not inclined to interfere with the proceedings pending before
the Court below. Hence this Court is not inclined to quash the complaints.
However, his appearance before the trial court is dispensed with except for
their appearance for the purpose of receiving the copy of the proceedings
u/s 207 Cr.P.C., framing of charges, questioning under Section 313 Cr.P.C.
and on the day on which judgment is to be pronounced. However, if for any
particular reason, the presence of the petitioners is necessary, the trial court,
at its wisdom, shall direct their appearance on those days.
https://www.mhc.tn.gov.in/judis/
Crl.O.P.Nos.26090, 26094, 26098,
26099, 26100, 26102, 26892 and 26932 of 2018
8. For the reasons aforesaid, these Criminal Original Petitions are
dismissed. Consequently connected miscellaneous petitions are closed.
07.10.2021
Speaking/Non Speaking order
Index : Yes/No
Internet: Yes/No
sk
To
1.The Judicial Magistrate No.III and IV,
Salem.
2. The Public Prosecutor,
High Court, Madras.
https://www.mhc.tn.gov.in/judis/
Crl.O.P.Nos.26090, 26094, 26098,
26099, 26100, 26102, 26892 and 26932 of 2018
M.DHANDAPANI,J.
Sk
Crl.O.P.Nos.26090, 26094, 26098, 26099, 26100, 26102,
26892 and 26932 of 2018
and
Crl.M.P.Nos.14978, 14979, 14980, 14982, 14983, 14984,
15520, 15521 15545, 15546 of 2018
07.10.2021
https://www.mhc.tn.gov.in/judis/
