Madras High Court

C.Premkumar vs B.Chamundeeswari on 7 October, 2021

                                                       1                        Crl O.P. No.15665 of 2016


                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                  DATED:    07.10.2021

                                                        CORAM:

                          THE HON'BLE MRS. JUSTICE V.BHAVANI SUBBAROYAN

                                                Crl.O.P. No.15665 of 2016
                                                            and
                                                Crl. M.P. No.7698 of 2016

                     C.Premkumar                                                       ... Petitioner

                                                           Vs.

                     B.Chamundeeswari                                               ... Respondent



                     PRAYER: Criminal Original Petition has been filed under Section 482

                     Cr.P.C., to call for the records in C.C.No.4965 of 2014 pending on the file

                     of III Fast Track Court, Saidapet, Chennai and quash the 138 N.I. Act

                     complaint pending against the petitioner.



                                      For Petitioner             : Mr. S. Silambu Selvan
                                      For Respondent             : Mr. Kansik,
                                                                   (For K.N.S. Law Chamber)

                                                                 *****



https://www.mhc.tn.gov.in/judis/
                                                       2                       Crl O.P. No.15665 of 2016


                                                        ORDER

This Criminal Original petition has been filed under Section 482

Cr.P.C. seeking for to call for the records in C.C.No.4965 of 2014

pending on the file of III Fast Track Court, Saidapet, Chennai and quash

the complaint filed under Section 138 of N.I. Act pending against the

petitioner.

2.The case of the petitioner is that the respondent had filed a case

against the petitioner for the offence punishable under Section 138 of the

Negotiable Instrument Act. The de-facto complainant was working under

the 1st petitioner's company as an employee. As there was a due of salary

to be paid to the defacto-complainant and for the said arrears of salary,

one Saravanan, 2nd accused, had issued a Post Dated Cheque for an

amount of Rs.7,28,000/- drawn on Oriental Bank of Commerce, Pondy

Bazar, T.Nagar, Chennai – 600 017 and the same was presented before

the State Bank of India, Balaji Nagar, Chennai, on 7.2.2014 and the said

cheque was returned with remarks of "Funds insufficient" on 9.2.2014. In

spite of the said cheque being returned, the petitioner herein has not paid

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the aforesaid amount. Hence, the defacto-complainant filed a petition in

C.C. No.4965 of 2014 under Section 138 of N.I. Act, before the XVII

Metropolitan Magistrate, Saidapet, Chennai against the petitioner. In the

meanwhile, the case has been transferred to the III Fast Track Court,

Saidapet, Chennai. after establishment of the Fast Track Court. In view

of the aforesaid complaint against the petitioner, the petitioner herein has

filed the present Criminal Original Petition to call for the records in C.C.

No.4965 of 2014 pending on the file of III FTC, Saidapet, Chennai and

quash the same.

3. The learned counsel for the petitioner would submit that the

said cheque was in the name of VT Education, wherein the case was filed

against the VT Man Power Agency. Hence, the petitioner has not issued

the said cheque and had no role played in the transaction with the

defacto-complainant/respondent herein.

4.It has further been submitted that as per the complaint, the 2nd

accused namely, Mr.Saravanan, had issued the said cheque under his

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individual capacity. The cheque was issued by the 2nd accused under his

individual capacity, it would not cover the petitioner as the cheque in

question was not issued by the petitioner herein. Further, the job

confirmation letter and in the agreement of the employment, it clearly

attributes that whatever the case relating to the employer and employee,

it should be resolved by appointing the Arbitrator. In this case, the

arbitrator was neither appointed nor any proposal has been sent to the

petitioner herein. Only after notice dated 4.1.2014 sent by the petitioner,

the respondent with the motive of retaliation has sent reply cum demand

notice dated 7.2.2014 to wreak vengeance, claiming an amount of

Rs.7,28,000/- as salary due, which was clearly replied by the petitioner

that the cheque was in no manner given to the defacto-

complainant/respondent herein. Further, the said Cheque would be

stolen or it should be kept mischievously by her own which may be

handed over to her at the time of her employment in the Company. The

cheque in question is not belonged to the company and the petitioner

had not issued any cheque to the de-facto complainant/respondent herein

as the petitioner had not direct interaction with her.

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5. The learned counsel for the respondent has submitted that in

order to deprive the respondent's legitimate dues payable by the Accused,

the 1st accused namely the company has chosen to issue the Legal Notice

dated 04.01.2014 with false, imaginary and frivolous allegations

claiming a sum of Rs.10 Lakh from the complainant. The complainant

had sent a Reply Notice dated 07.02.2014 after recovery from her illness

claiming her dues of Rs.7,28,000/- with interest at the rate of 24% p.a.

from 03.06.2013. The 1st accused sent a letter dated 10.02.2014 stating

that a detailed Re-joinder will be sent in due course. But it has not been

sent by the company till date and as such the contentions against both

accused stands proved. For better adjudication, the said Notice, Reply

Notice and Letters have been filed along with the said Complaint.

6. It has been further submitted by the learned counsel for the

respondent that within a period of 15 days from the date of the receipt of

the information regarding return of the Cheque, the complainant has sent

a Legal Notice dated 24.02.2014 through her counsel calling upon the

accused for the payment of the said amount due on the dishonoured

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cheque within 15 days from the date of receipt of notice. In the event of

failure of the accused to pay the said amount within the stipulated time,

the de-facto complainant has filed the complaint in C.C. No.4965 of

2014 on the file of the Metropolitan Magistrate, Saidapet, Chennai and

the same has been transferred to III-FTC, Saidapet after establishment of

Fast Track Court.

7. Heard, the learned counsel for the petitioner and the learned

counsel for the respondent as well as perused the material available on

records.

8. On a perusal of the records, it is seen that the defacto

complainant was working as Assistant General Manager at VT

Manpower Consultancy Services Private Limited, from 14.7.2010 and

her salary was Rs.35,000/- per month. The general policies, leave and

permission policies, accounts policies, salary policies, amendment,

agreement of employment in respect of the VT Manpower Consultancy

Services Private Limited have been issued to the defacto-complainant. As

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per clause 19 (Arbitration) of the Agreement of Employment of VT

Manpower Consultancy Services Private Limited, the parties expressly

agree that all disputes or controversies arising out of this agreement, its

performance, or the alleged breach thereof, if not disposed of by

agreement, shall be resolved by arbitration in accordance with this

section. Either party must demand such arbitration only within three (3)

months after the controversy arises by sending a notice of demand to

arbitrate under the Indian Arbitration and Conciliation Act, 1996, to the

other party. In the disposition of the dispute, the arbitrators shall be

governed by the express terms of this agreement and otherwise by the

laws of the State of (specify) which shall be govern the interpretation of

the Agreement. The decision of the arbitrators shall be final and

conclusive on the parties and shall be a bar to any suit, action or

proceeding instituted in any court or before any administrative tribunal.

Notwithstanding the foregoing, judgment on any award by the arbitrators

may be entered in any court of competent jurisdiction. This arbitration

provision shall survive any expiration or termination of the agreement.

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9. It could be seen that the cheque was issued by one individual

and the seal of the company namely, VT Manpower Consultancy Services

Private Limited is not found in the said cheque. The complaint shows that

the defacto complainant was terminated from the said post as the

performance was not satisfactory and malpractice of the petitioner herein.

M/s. VT Manpower Consultancy Services Private Limited issued a legal

notice to the de-facto complainant stating that she has to pay

Rs.10,00,000/- for illegal acts of diverting business meant for them,

unauthorized solicitation, unauthorized use of database, disseminating

false news about credential and threatening to use personal influence.

After this, the de-facto complainant issued a notice stating that one

Saravanan, General Manager, issued a post dated cheque bearing

No.813660 dated 3.12.2013 for a sum of Rs.7,28,000/- in favour of her

drawn on Oriental Bank of Commerce for liability and the said

Mr.Saravanan being 2nd accused and the petitioner being 1st accused are

jointly and severally liable to pay the aforesaid amount due to the de-

facto complainant and the cheque was returned as "Funds insufficient" on

09.02.2014.

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10. Subsequent to return of the cheque in question, a reply has

been sent by Mr.Saravanan, General Manager, VT Manpower

Consultancy Services Private Limited, stating that

Chamundeeshwari/respondent herein is in possession of cheque not

given either by the Company -VT Manpower Consultancy Services

Private Limited or VT Educational Institutions Pvt Ltd., and those

cheques were taken away by her without the consent or authorization of

the Company. Thereafter, the de-facto complainant filed a complaint

under Section 138 of the Negotiable Instruments Act, 1881 as amended

r/w Section 357 of Cr.P.C. in C.C.No.4965 of 2014 before the XVII

Metropolitan Magistrate, Saidapet, Chennai.

11. While perusing the records, it could be seen that the defacto

complainant was working as an employee in the said Company and 2nd

accused Mr.Saravanan General Manager of the firm in his personal

capacity issued a cheque for liability as the arrears of salary to be paid to

the defacto-complainant but the case under Section 138 of N.I. Act was

filed against VT Manpower Consultancy Services Private Limited.

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12.It could also be seen that there are allegations and counter

allegations against each parties and as per clause 19 (Arbitration) of the

Agreement of Employment of VT Manpower Consultancy Services

Private Limited, the parties expressly agree that all disputes or

controversies arising out of this agreement, its performance, or the

alleged breach thereof, if not disposed of by agreement, shall be resolved

by arbitration in accordance with this section. Either party must demand

such arbitration only within three (3) months after the controversy arises

by sending a notice of demand to arbitrate under the Indian Arbitration

and Conciliation Act, 1996, to the other party.

13.It is relevant to rely upon the judgment of the Hon'ble Supreme

Court of India passed in Crl.A.No.579 of 2019 dated 02.04.2019 in the

case of Devendra Prasad Singh Vs. State of Bihar & Anr., as follows:-

" 12.So far as the second ground is concerned, we are of the view that the High Court while hearing the application under Section 482 of the Cr.P.C. had no jurisdiction

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to appreciate the statement of the witnesses and record a finding that there were inconsistencies in their statements and, therefore, there was no prima facie case made out against respondent No.2. In our view, this could be done only in the trial while deciding the issues on the merits or/and by the Appellate Court while deciding the appeal arising out of the final order passed by the Trial Court but not in Section 482 Cr.P.C. proceedings.

13.In view of the foregoing discussion, we allow the appeal, set aside the impugned order and restore the aforementioned complaint case to its original file for being proceeded with on merits in accordance with law.

14.Recently, the Hon'ble Supreme Court of India dealing in respect

of the very same issue in Crl.A.No.1572 of 2019 dated 17.10.2019 in the

case of Central Bureau of Invstigation Vs. Arvind Khanna, wherein, it

has been held as follows:

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“19. After perusing the impugned order and on hearing the submissions made by the learned senior counsels on both sides, we are of the view that the impugned order passed by the High Court is not sustainable. In a petition filed under Section 482 of Cr.P.C., the High Court has recorded findings on several disputed facts and allowed the petition. Defence of the accused is to be tested after appreciating the evidence during trial. The very fact that the High Court, in this case, went into the most minute details, on the allegations made by the appellant-C.B.I., and the defence put-forth by the respondent, led us to a conclusion that the High Court has exceeded its power, while exercising its inherent jurisdiction under Section 482 Cr.P.C.

20.In our view, the assessment made by the High Court at this stage, when the matter has been taken cognizance by the Competent Court, is completely incorrect and uncalled for.”

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15.Further the Hon'ble Supreme Court of India also held in the

order dated 02.12.2019 in Crl.A.No.1817 of 2019 in the case of

M.Jayanthi Vs. K.R.Meenakshi & anr, as follows:

"9. It is too late in the day to seek reference to any authority for the proposition that while invoking the power under Section 482 Cr.P.C for quashing a complaint or a charge, the Court should not embark upon an enquiry into the validity of the evidence available. All that the Court should see is as to whether there are allegations in the complaint which form the basis for the ingredients that constitute certain offences complained of. The Court may also be entitled to see (i) whether the preconditions requisite for taking cognizance have been complied with or not; and (ii) whether the allegations contained in the complaint, even if accepted in entirety, would not constitute the offence alleged. ..............

13. A look at the complaint filed by the appellant would show that the appellant had incorporated the ingredients necessary for

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prosecuting the respondents for the offences alleged. The question whether the appellant will be able to prove the allegations in a manner known to law would arise only at a later stage...................."

The above judgments are squarely applicable to this case and as such, the

points raised by the petitioner cannot be considered by this Court under

Section 482 Cr.P.C.

16.It is further seen that the cheque has been issued by one

Saravanan and the defacto complainant claims that it has been issued by

Mr.Saravanan, General Manager, VT Manpower Consultancy Services

Private Limited for personal liability. The issue whether the cheque has

been issued by one Saravanan in his personal capacity or in the capacity

of the General Manager of the firm is to be decided only at the stage of

trial. This Court cannot have a roving enquiry in this matter and as per

the order of the Hon'ble Supreme Court where guidelines were issued for

quashing the FIR, this case would not fall under the guidelines issued