Madras High Court
Y.R.Jeyaraj vs K.Somu on 28 October, 2022
Crl.O.P.(MD) No.15360 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 28.10.2022
CORAM
THE HON'BLE MR.JUSTICE SATHI KUMAR SUKUMARA KURUP
CRL.O.P (MD) No.15360 of 2022
and
Crl.M.P(MD) Nos.10086 and 10088 of 2022
Y.R.Jeyaraj ...Petitioner/Accused No.2
-vs-
K.Somu ..Respondent/Complainant
PRAYER: Criminal Original Petition filed under Section 482 of Cr.P.C,
praying to call for the records in C.C.No.166 of 2022 pending before the
Judicial Magistrate / Fast Track Court (Magistrate level), Tuticorin,
Tuticorin District and quash the complaint against the Petitioner / Accused
No.2.
For Petitioner : Ms. Ka.Raamakrishnan
For Respondent : Mr.S.Sarvagan Prabhu
1/6
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD) No.15360 of 2022
ORDER
This Criminal Original Petition has been filed to call for the records
in C.C.No.166 of 2022 pending before the Judicial Magistrate / Fast Track
Court (Magistrate level), Tuticorin, Tuticorin District and quash the
complaint against the Petitioner / Accused No.2.
2. The learned Counsel for the Petitioner submitted that he had
appeared in the similar case in Crl.O.P(MD)No.1145 of 2022, which was
disposed by the learned Single Judge of this Court
(Mr.Justice G.K.Ilanthiraiyan) by order dated 08.03.2022. The learned
Counsel for the Petitioner relied on the 7th paragraph of the said judgment
that,
“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
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD) No.15360 of 2022
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 for the discharge, in
whole or in part, of any debt or other liability and the said
cheque has been returned by the bank unpaid, such person
can be said to have committed an offence. Section 138 of the
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD) No.15360 of 2022
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.
3.In the light of the judgment in Crl.O.P.(MD)No.1145 of 2022, the
learned Judicial Magistrate, Thoothukudi is directed to proceed with the
trial as against only the first accused in C.C.No.166 of 2022 and to dispose
this case as expeditiously as possible. The complaint is quashed as against
the second accused in C.C.No.166/2022.
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD) No.15360 of 2022
4.In view of the above, this Petition is allowed and the proceedings as
against the second Accused in C.C.No.166 of 2022 on the file of the
Judicial Magistrate / Fast Track Court (Magistrate level), Tuticorin is
quashed.
28.10.2022
Internet:Yes./No
Index:Yes/no
indu
To
1. The Judicial Magistrate / Fast Track Court (Magistrate level),
Tuticorin.
2.The Government Advocate (Crl. Side),
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD) No.15360 of 2022
SATHI KUMAR SUKUMARA KURUP, J.
indu
CRL.O.P (MD) No.15360 of 2022
and
Crl.M.P(MD) Nos.10086 and 10088 of 2022
28.10.2022
https://www.mhc.tn.gov.in/judis
