Madras High Court
Bishan Chand Carg vs Moniesh Sajjan Raj on 14 June, 2022
Crl.O.P.No.13163 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 14.06.2022
Coram:
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
Crl.O.P.No.13163 of 2022
and
Crl.M.P.No.7077 of 2022
1. Bishan Chand Carg
2. Rakesh Kumar Carge ... Petitioners
Vs.
Moniesh Sajjan Raj ...Respondent
PRAYER: Criminal Original Petition filed under Section 482 of Criminal
Procedure Code, praying to call for records and quash the complaint case No.STC
95 of 2020 pending on the file of the learned Judicial Magistrate-III, Salem.
For Petitioner : Mr.Rahul Ranjan
Page 1 / 8
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.13163 of 2022
ORDER
This Criminal Original Petition has been filed seeking to quash the
proceedings initiated against the petitioners under Section 138 of Negotiable
Instruments Act in STC No.95 of 2020 pending on the file of the learned Judicial
Magistrate-III, Salem.
2. The complaint has been lodged under Section 138 Negotiable Instruments
Act against the accused including the first accused /the partnership firm and other
partners.
3. It is the case of the complainant that they had supplied Cloves worth
about Rs.69,21,903/- from his Mumbai office and the accused are liable to pay
Rs.16,21,903/- for the above said transaction. Similarly the accused also liable to
pay Rs.1,08,000,00/- towards supply of Cloves effected from their Delhi Office.
Towards the above said liability, the accused had issued 3 cheques bearing
Nos.662304, 662305 and 662306 dated 30.08.2019, 30.09.2019 and 30.10.2019
respectively for a sum of Rs.30,00,000/- each in favour of Montel, drawn at Union
Bank Khari Baoli Branch, New Delhi. When the above cheques were presented
Page 2 / 8
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.13163 of 2022
for incashment through the complainant's bank, the same were dishonoured on the
ground of funds in sufficient. After issuing statutory notice, the present complaint
has been filed.
4. Now the petitioners have filed the present petition seeking to quash the
above complaint mainly on the ground that the cheque book containing the
cheques in question were already stolen in respect of which, FIR has also been
registered on 14.04.2019 followed by a publication effected on 02.05.2019.
Thereafter, the bank also intimated the complainant/the petitioners' firm that they
have destroyed the cheque books. Hence, the learned counsel for the petitioners
submitted that these cheques have been misused after they were stolen.
5. The next submission made by the learned counsel for the petitioners is
that the complaint has been filed only under Section 138 Negotiable Instruments
Act and not under Section 141 Negotiable Instruments Act. Therefore, there cannot
be any prosecution against the other partners of the firm. The yet another
submission of the learned Counsel is that these petitioners are not signatories to the
cheques and only the other partner signed the same and therefore, there cannot be
Page 3 / 8
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.13163 of 2022
any prosecution against these petitioners. He also placed reliance of the Judgment
of the Hon'ble Supereme Court reported in Alka Khandu Avhad Vs. Amar
Syamprasad Mishra & Another, reported in Crl.A.No.258 of 2021.
6. Heard the learned counsel for the petitioners and perused the complaint
and also the materials available on record.
7. At the outset, this Court is unable to countenance the submission of the
learned counsel for the petitioners to quash the proceedings on the ground of theft
of cheques merely on the basis of registration of FIR and publication effected in
this regard. Whether the cheques in question were actually stolen or the FIR has
been registered only as defence for the proceedings is a matter of evidence and
that could be seen only in the trial and it requires proof. Merely on the basis of one
side submission, theft of cheques cannot be presumed. The other submission
highlighted by the complaint is that the same has been filed only based on the
ledger account and therefore there is no legally enforcible debt. It is relevant to note
that once the cheque is issued and got dishonoured and statutory notice is
followed, it gives rise to the cause of action. The presumption available under
Page 4 / 8
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.13163 of 2022
Section 118 and 139 Negotiable Instruments Act get attracted to the Negotiable
Instruments Act. As such, the presumption also includes about consideration,
execution and time etc. This has been rightly held by the Full Bench of the Hon'ble
Apex Court in Rangappa Vs. Sri Mohan reported in Crl.A.1020 of 2010.
Therefore, it is for the petitioners to dislodge the statutory presumption available
u/s.118 and 139 of Negotiable Instruments Act by bringing the probability in the
evidence and not mere submissions in the proceedings under Section 482 Cr.P.C.
as it is a matter of evidence. The further contention of the petitioners is that they
had not signed the cheques and some other partner had signed the cheques and
hence there cannot be a prosecution against them. This Court in view of such
contention also is not maintainable since in the very complaint itself, it is alleged
that the petitioners and the other partner were in the helm of the day to day affairs
of the firm. It is to be noted that every partner is the agent of the firm for the
purpose of the business of the firm. Therefore, any act done by one partner,
certainly would bind on the other partner and joint liability also is attached. When
such view of the matter, such contentions are also not maintainable. As far as the
contention that the petitioners had not signed the cheques, will not make any
difference since the cheques were issued on behalf of the firm.
Page 5 / 8
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.13163 of 2022
8. Yet another submission made by the counsel for the petitioners is that the
proceedings was initiated only under Section 138 Negotiable Instruments Act and
not under Section 141 Negotiable Instruments Act. It is relevant to note that
Section 141 Negotiable Instruments Act relates to the offences by the company and
not applicable to individuals. Therefore, merely because the particular Section has
been omitted in the complaint, the liability for the offence cannot be wiped out.
Mere omission to include a provision of law in the complaint, is not a ground to
quash the proceedings at this stage. The Judgment relied upon by the learned
counsel for the petitioners is in different context wherein the husband and wife
were prosecuted on the ground of joint liability and the Hon'ble Apex Court after
considering the fact that there were no joint account maintained by them and the
cheque was issued only by the husband, quashed the complaint against the wife
who was arrayed as A2. Therefore, the same is not applicable to the present case
and this Court finds no merit in this case. Accordingly this Criminal Original
Petition is dismissed. It is well open to the petitioners to raise all their defence in
the trial to prove their allegations.
Page 6 / 8
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.13163 of 2022
9. At this juncture, the learned counsel for the petitioners seeks to dispense
with the personal appearance of the petitioners. Considering the age of the
petitioners and they are also residents of far away place, this Court dispense with
the personal appearance of the petitioners before the Trial Court except for receipt
of copies, answering the charges, questioning under Section 313 Cr.P.C., or on any
other date as may be required by the Trial Court. They shall be represented by a
counsel, who shall cross examine the witnesses on the same day, when they are
examined in Chief.
10. With the above directions, this Criminal Original Petition is dismissed.
Consequently, connected Miscellaneous Petition is closed.
14.06.2022
Index : Yes
Internet : Yes
Speaking Order
ksa-2
Page 7 / 8
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.13163 of 2022
N.SATHISH KUMAR, J.
ksa-2
Crl.O.P.No.13163 of 2022 and
Crl.M.P.No.7077 of 2022
14.06.2022
Page 8 / 8
https://www.mhc.tn.gov.in/judis
