Madras High Court
B.Kungumapriya vs V.Balasubramanian on 8 March, 2022
Crl.O.P.(MD)No.1145 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 08.03.2022
CORAM:
THE HON'BLE MR.JUSTICE G.K.ILANTHIRAIYAN
Crl.O.P.(MD)No.1145 of 2022
&
Crl.M.P.(MD)No.827 of 2022
B.Kungumapriya ...Petitioner
Vs.
1. V.Balasubramanian
2. M.R.S.Balajee ... Respondents
Prayer: This Criminal Original Petition filed under Section 482 Cr.P.C.to call
for the records in connection with the impugned complaint in S.T.C No.818 of
2021 pending on the file of learned Fast Track Court (Magisterial Level), Karur
and quash the same in so far as the petitioners are concerned.
For Petitioner : Mr.S.Sarvagan Prabhu
For Respondents : Mr.V.Balaji
ORDER
This Criminal Original Petition has been filed to quash the complaint in
S.T.C No.818 of 2021, pending on the file of learned Judicial Magistrate, Fast
Track Court (Magisterial Level), Karur.
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD)No.1145 of 2022
2.In this case, there are totally two accused, in which, the petitioner is
arrayed as the second accused, on the complaint lodged by the first respondent
herein. The petitioner is the wife of the first accused. The first respondent
lodged complaint alleging that the first accused is the Proprietor of Sri
Mahalakshmi Paper Industries and the second accused is the wife of first
accused and they are jointly running the business in the name and style of Sri
Mahalakshmi Paper Industries.
3.While being so, the first accused borrowed a sum of Rupees Ten lakhs
as loan, in the name of second accused for their business purpose. In order to
repay the same, the first accused issued a cheque in the name of Sri
Mahalakshmi Paper Industries and same was presented for collection. The said
cheque was dishonoured for the reason 'funds insufficient'. After causing
statutory notice, the first respondent lodged a complaint, for the offence
punishable under Section 138 of Negotiable Instruments Act.
4.The learned counsel for the petitioner would submit that there is
absolutely no legally enforceable debt by the petitioner herein, since the
petitioner is nowhere connected with the said business. Even according to the
first respondent, her husband is the sole Proprietor of the Sri Mahalakshmi
Paper Industries, alleged cheque was issued in the name of Sri Mahalakshmi
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD)No.1145 of 2022
Paper Industries, by its Proprietor. In fact, on receipt of the statutory notice from
the first respondent, the petitioner has categorically replied that she is noway
connected with the Sri Mahalakshmi Paper Industries, neither as Proprietor nor
the signatory to the cheque. In support of his contention he relied upon the
decision of Hon'ble Supreme Court in 2021(1)566 SCC, in the case of Alka
Khandu Avhad vs Amar Syamprasad Mishra.
5.The learned counsel for the first respondent submitted that admittedly
both the accused are running the business in the name and style of Sri
Mahalakshmi Paper Industries. In fact, the loan amount which was borrowed by
the accused persons transferred only through the petitioner's account, for their
business purpose. Both the accused have agreed to repay the same in 36
monthly instalments at Rs.42,800/- per month and paid monthly instalments for
16 months, only through the account of the second accused, viz., the petitioner
herein. Therefore, the petitioner herein is fully acquainted with the business and
she is equally liable to be punished for the offence under Section 138 of
Negotiable Instruments Act.
6.There are two accused in this case, in which, the petitioner is added as a
second accused and she is the wife of first accused. The first accused is the
Proprietor of Sri Mahalakshmi Paper Industries. The alleged cheque was issued
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Crl.O.P.(MD)No.1145 of 2022
on behalf of Sri Mahalakshmi Paper Industries, in the capacity of Proprietor, by
the first accused. Though, loan borrowed by both the accused and loan amount
was transferred in favour of the petitioner's account, alleged cheque was issued
by the first accused. Admittedly, the petitioner is neither Proprietor nor the
signatory to the cheque.
7.In this regard, the learned counsel for the petitioner relied upon the
Judgment, 2021(1)566 SCC, in the case of Alka Khandu Avhad vs Amar
Syamprasad Mishra. in which the Hon'ble Supreme Court of India held that on
a fair reading of Section 138 of the Negotiable Instruments Act, before a person
can be prosecuted, the following conditions are required to be satisfied:
“7. i) that the cheque is drawn by a person and on an account
maintained by him with a banker;
ii) for the payment of any amount of money to another person
from out of that account for the discharge, in whole or in part,
of any debt or other liability; and
iii) the said cheque is returned by the bank unpaid, either
because of the amount of money standing to the credit of that
account is insufficient to honour the cheque or that it exceeds
the amount arranged to be paid from that account.”
Therefore, a person who is the signatory to the cheque and the cheque is drawn
by that person, on an account maintained by him and the cheque has been issued
https://www.mhc.tn.gov.in/judis
for the discharge, in whole or in part, of any debt or other liability and the said
Crl.O.P.(MD)No.1145 of 2022
cheque has been returned by the bank unpaid, such person can be said to have
committed an offence. Section 138 of the Negotiable Instruments Act, does not
speak about the joint liability. Even in case of a joint liability, in case of
individual persons, a person other than a person who has drawn the cheque on
an account maintained by him, cannot be prosecuted for the offence
under Section 138 of the NI Act. A person might have been jointly liable to pay
the debt, but if such a person who might have been liable to pay the debt jointly,
cannot be prosecuted unless the bank account is jointly maintained and that he
was a signatory to the cheque.
8.In the light of the above decision, in the case on hand, the alleged
cheque was not issued from the joint account of A1 & A2. It was issued on
behalf of Sri Mahalakshmi Paper Industries as a Proprietor, signed by the first
accused. Hence, the petitioner is noway liable to be punished for the offence
under Section 138 of Negotiable Instruments Act, since no offence is made out
against the petitioner herein.
9.In view of the above, this Criminal Original Petition is allowed and the
complaint in S.T.C No.818 of 2021 pending on the file of learned Fast Track
Court (Magisterial Level), Karur is quashed as against the petitioner /second
accused alone. The trial court is directed to complete the trial as against the first
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Crl.O.P.(MD)No.1145 of 2022
accused, within six months from the date of receipt of a copy of this order.
Consequently, connected miscellaneous petition is closed.
08.03.2022
Index : Yes / No
Internet : Yes/ No
PNM
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.
To:
1.The Judicial Magistrate,
Fast Track Court (Magisterial Level), Karur.
2.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD)No.1145 of 2022
G.K.ILANTHIRAIYAN,J.
PNM
ORDER IN
Crl.O.P.(MD)No.1145 of 2022
&
Crl.M.P.(MD)No.827 of 2022
08.03.2022
https://www.mhc.tn.gov.in/judis
