Madras High Court
The Proprietor vs M.Marimuthu on 18 April, 2022
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated:18/04/2022
CORAM:
THE HON'BLE MR JUSTICE G.ILANGOVAN
Crl.OP(MD)No.21554 of 2018
and
Crl.MP(MD)No.9981 of 2018
1.The Proprietor,
M/s.Gateway Freight Forwarders,
156, Coral Merchant Street,
2nd Floor, Mannadi,
Chennai.
Represented by Shantikkumar
2.Mr.Shantikkumar
M/s. Gateway Freight Forwarders,
156, Coral Merchant Street,
2nd Floor, Mannadi,
Chennai. : Petitioners/A1 and A2
Vs.
M.Marimuthu : Respondent/Complainant
Prayer: Criminal Original Petition has been filed
under section 482 of the Criminal Procedure Code, to call
for the records pertaining to the case in CC No.211 of
2018 on the file of the Judicial Magistrate, Fast Track
Court (Magistrate Level), Thoothukudi and quash the same.
For Petitioners : Mr.Mr.AR.L.Sundaresan
Senior counsel
for Mr.S.Sekar
For Respondent : Mr.K.Veilmuthu
https://www.mhc.tn.gov.in/judis
2
O R D E R
The petition has been filed seeking quashment of CC
No.211 of 2018 on the file of the Judicial Magistrate,
Fast Track Court (Magistrate Level), Thoothukudi.
2.The case of the respondent before the trial court
is as follows:-
The petitioners are accused before the trial court,
running a forwarding consignment company in Tuticorin and
Karur area, etc. In that company, one Mariadoss was
working as a Manager. Similarly Adaikalaraj, Rajmohan and
Syed were also working. On behalf of the company and for
themselves, they obtained a loan amount of Rs.9,50,000/-
on various dates from the respondent. In spite of
repeated demand, the amount was not paid. Later, on
15/06/2018, they issued a cheque bearing No.545179, dated
30/07/2018. That was presented for payment, on
20/08/2018. But it was returned as 'funds insufficient'.
So, he sent a notice, on 25/08/2018. They received the
same and gave reply containing false allegations. With
these allegations, the respondent has filed a private
complaint before the trial court.
https://www.mhc.tn.gov.in/judis
3.Seeking quashment of the same, this petition has
been filed by the petitioners on the ground that
absolutely, the money was not borrowed by the company and
as per section 138 of the Negotiable Instruments Act, the
legally enforceable liability must be exist. The amount
has been paid to the above said Mariadoss, Adaikalaraj,
Rajamohan and Syed, privately and the company is not at
all involved. So they ought to have proceeded against
only the above said persons. Since the amount has been
transfered in the account of the above said persons, the
company cannot be held responsible. In fact, for the
purpose of meeting out the incidental expenses at
Tuticorin, the 2nd petitioner handed over the signed blank
cheque to the Manager Mariadoss. The above said
Mariadoss did not attend the office, on 16/08/2018. A
call was made by the ICICI bank and enquired about the
issuance of the cheque. The company instructed the
banker to stop the payment. On further enquiry, it is
revealed that the above said Mariadoss misused the
cheque, over which, a complaint has also been given,
which was also registered in Crime No.22 of 2018 against
the above said Mariadoss. Notice was also issued to him.
https://www.mhc.tn.gov.in/judis
4.Heard both sides.
5.The learned Senior counsel appearing for the
petitioners would submit that even on the face of the
averments made in the complaint, absolutely there is no
material brought on record to the effect that there was
existing legally enforceable liability between the first
petitioner company and the respondent.
6.No doubt that in the complaint, it has been
mentioned that the office staff of the first petitioner
company obtained the loan amount for themselves and as
well as on behalf of the company from the respondent.
But there is no specific pleading to the effect that the
present cheque has been issued only towards discharge of
the personal loan of the above said Mariadass. The very
same averment has also been made in the demand notice,
dated 25/08/2018. In the reply notice, dated 05/09/2018,
it has been stated that the company is having turn over
of Rs.5.75 crores per annum and there is no necessity to
obtain loan from the respondent. Since it is a
proprietary concerned, the 2nd petitioner alone is the
authorised person to deal with the money transaction. He
https://www.mhc.tn.gov.in/judis
never authorised any staff member to receive the amount
on behalf of the company. The personal loan transaction
between the staff members as well as the respondent
cannot be enforced against the company. So according to
the learned Senior counsel, when there is no legally
enforceable liability or debt, the prosecution itself is
bad in law.
7.It is his next submission that nowhere in the
complaint, it has been stated that the above said
Mariadoss was authorised to obtain loan on behalf of the
company from the respondent. So according to him, in the
absence of any such plea, the proceedings cannot be
initiated.
8.No doubt, they are some sort of lapses or
omissions in the complaint. But whether these omissions
and lapses on behalf of the respondent are sufficient
enough to quash the proceedings is the next question,
which arises for consideration. For that, the learned
Senior counsel appearing for the petitioners would submit
that noting that the above said cheque has been misused,
which was signed by the second petitioner, a police
https://www.mhc.tn.gov.in/judis
complaint has been lodged, upon which a case in Crime No.
22 of 2018 for the offences under sections 406 and 420
IPC has been registered, on 02/10/2018. Now the date of
notice is 25/08/2018. It has been specifically stated in
the grounds that on a particular date namely on
21/08/2018, a phone call was received from the ICICI bank
stating that they have received a cheque for honouring,
but immediately stopped payment instruction was given.
After a lapse of two months, police complaint has been
lodged wherein it has been stated that the above said
Mariadoss misused the cheque, which was given to him. The
disputed cheque bearing No.515479. It has also been
mentioned in the complaint. It appears that the complaint
was given to the Superintendent of Police, on 24/08/2018,
which was forwarded to the DCB, Tuticorin, upon which,
the above said case has been registered. No doubt that
within three days, the above said complaint has been
lodged before the Superintendent of Police, Tuticorin.
These facts are the defences, which are available to the
petitioners, which can be taken before the trial court
and the defence that has been raised by these petitioners
at this stage cannot be taken into account.
https://www.mhc.tn.gov.in/judis
9.More over, the documents, which are filed by the
petitioners are not admitted by the respondent herein. So
the facts stated in the complaint are a matter for
consideration, not only by the Investigating Officer, but
also by the trial court at the time of trying the
offence. Whether the 2nd petitioner authorised the above
said Mariadoss to obtain loan on behalf of the company is
also a matter for consideration during trial. Since it is
an internal administration of the first petitioner's
company, the respondent may not aware all those things.
So that can be brought only during the trial by producing
the relevant document and evidence.
10.Similarly, whether the money has been transferred
in the individual account of the above said Mariadoss, is
also a matter for consideration during the course of
trial process. No material has been placed at this stage.
11.The learned counsel appearing for the respondent
would submit that since the signature in the disputed
cheque has been admitted by the first petitioner, no
further enquiry need be undertaken by this court by
exercising the jurisdiction under section 482 Cr.P.C. For
https://www.mhc.tn.gov.in/judis
that, he would rely upon the judgment of the Hon'ble
Supreme Court in the case of Rajeshbhai Muljibhai Patel
and others Vs. State of Gujarat and another (Criminal
Appeal Nos.251-252 of 2020, dated 10/02/2020).
12.Now whatever it may be the position, now all the
contentions raised by the petitioners cannot be canvassed
and decided by this court in this petition. It is a
matter for trial, as mentioned earlier. So, I find no
merit in the petition and accordingly, it is liable to be
dismissed.
13.In the result, this criminal original petition is
dismissed. Consequently, connected Miscellaneous Petition
is closed.
18/04/2022
Index:Yes/No
Internet:Yes/No
er
https://www.mhc.tn.gov.in/judis
To,
The Judicial Magistrate,
Fast Track Court (Magistrate Level),
Thoothukudi.
https://www.mhc.tn.gov.in/judis
G.ILANGOVAN, J
er
Note :
In view of the present
lock down owing to
COVID-19 pandemic, a web
copy of the order may be
utilized for official
purposes, but, ensuring
that the copy of the
order that is presented
is the correct copy,
shall be the
responsibility of the
advocate/litigant
concerned.
Crl.OP(MD)No.21554 of 2018
18.04.2022
https://www.mhc.tn.gov.in/judis
