P.Dhivya @ Dhivyalakshmi vs G.Thangadurai
2022 Latest Caselaw 15586 Mad

                                                                           Crl.O.P.No.22779 of 2022

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                    DATED: 21.09.2022

                                                         CORAM:

                             THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN

                                                  Crl.O.P.No.22779 of 2022
                                          and Crl.M.P.Nos.14605 and 14606 of 2022

                     P.Dhivya @ Dhivyalakshmi                                     ... Petitioner

                                                              Vs.
                     G.Thangadurai                                                ... Respondent

                     PRAYER: Criminal Original Petition filed under Section 482 of Cr.P.C.
                     praying to call for the records in CC.No.27 of 2019 on the file of learned
                     Judicial Magistrate No-I, Mettur, Salem District and quash the same as
                     against the petitioner herein.
                                             For Petitioner     : Mr.M.R.Jothimanian



                                                         ORDER

This Criminal Original Petition has been filed calling for the

records in CC.No.27 of 2019 on the file of learned Judicial Magistrate

No-I, Mettur, Salem District and to quash the same.

https://www.mhc.tn.gov.in/judis Crl.O.P.No.22779 of 2022

2. The petitioner is an accused in the complaint lodged by the

respondent for the offences punishable under Section 138 of Negotiable

Instruments Act. The respondent lodged a complaint alleging that the

petitioner had purchased a house property from the complainant, due to

which she was acquainted with the complainant. On 02.09.2018, the

petitioner borrowed a sum of Rs.75,000/- for her family and business

expenses and also agreed to repay the said amount within a month. In

order to repay the same, the petitioner issued a cheque for a sum of

Rs.75,000/- to the respondent. The respondent presented the said cheque

for collection and the same was returned dishonor for the reason “Funds

Insufficient”. After causing statutory notice, the respondent filed a

complaint for the offence under Section 138 of Negotiable Instruments

Act, as against the petitioner.

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

cheque was issued in the name of the company and even then the

respondent failed to implead the company as a party to the present

https://www.mhc.tn.gov.in/judis Crl.O.P.No.22779 of 2022

impugned proceedings. The statutory notice was also not issued to the

company, since the alleged cheque was issued on behalf of the company.

He also raised another ground that there is a manipulation in the alleged

cheque dated 08.11.2018. Hence, he prayed to quash the proceedings.

4. In support of his contention, he also relied upon the Judgment

reported in 2005 (8) SCC in the case of “ S.M.S.Pharmaceuticals Ltd Vs

Neeta Bhalla and Another”.

5. A perusal of the complaint revealed that the complaint has been

filed for the offence under Section 138 of Negotiable Instruments Act as

against the petitioner herein. The cheque dated 08.11.2018 was issued by

the petitioner in the capacity of Proprietor of “Sri Dhivyalakshmi Trading

and Contractors”. Therefore, it is not a company and also the complaint

was filed only for the offence under Section 138 of Negotiable

Instruments Act and not for the offence under Section 141 of Negotiable

Instruments Act.

https://www.mhc.tn.gov.in/judis Crl.O.P.No.22779 of 2022

6. Thus, it is clear that the petitioner is the Proprietor of “Sri

Dhivyalakshmi Trading and Contractors” and there is no need to implead

the Proprietor concern as accused, since she is a Proprietrix of “Sri

Dhivyalakshmi Trading and Contractors”. The learned counsel for the

petitioner also produced the registration certificate registered with the

Commercial Taxes Department and it also revealed that the petitioner is a

Proprietrix of “Sri Dhivyalakshmi Trading and Contractors”.

7. Therefore, the judgment cited by the learned counsel for the

petitioner is not applicable to the case on hand. That apart, another

ground raised by the petitioner is that there is a manipulation in the

alleged cheque and the same cannot be considered by this Court.

Therefore, there is absolutely no ground to quash the proceedings.

8. In view of the above discussion, this Court is not inclined to

quash the proceedings in CC.No.27 of 2019 on the file of learned

Judicial Magistrate No-I, Mettur, Salem District. The personal

appearance of the petitioner is dispensed with and she shall be

https://www.mhc.tn.gov.in/judis Crl.O.P.No.22779 of 2022

represented by a counsel after filing appropriate application. However,

the petitioner shall be present before the Court at the time of furnishing

of copies, framing charges, questioning under Section 313 Cr.P.C. and at

the time of passing judgment. The trial Court is directed to complete the

trial, within a period of three months from the date of receipt of a copy of

this Order.

9. Accordingly, the Criminal Original Petition stands dismissed.

Consequently, connected miscellaneous petitions are closed.

21.09.2022

Internet : Yes / No Index : Yes / No Speaking / Non Speaking order mn

https://www.mhc.tn.gov.in/judis Crl.O.P.No.22779 of 2022

G.K.ILANTHIRAIYAN, J.

mn

To

1. The Judicial Magistrate No-I, Mettur, Salem District.

2. The Public Prosecutor, High Court, Madras.

Crl.O.P.No.22779 of 2022 and Crl.M.P.Nos.14605 and 14606 of 2022

21.09.2022

https://www.mhc.tn.gov.in/judis