Madras High Court
M.Ramamurthy vs Mohamed Thaiyuf on 12 April, 2023
CRL.A.(MD).No.110 of 2010
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 12.04.2023
CORAM
THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN
CRL.A.(MD).No.110 of 2010
M.Ramamurthy ... Appellant/Petitioner
Vs.
Mohamed Thaiyuf ... Respondent/Respondent
PRAYER : Criminal Appeal filed under Section 378 of Cr.P.C to call for
the records and set aside the order of acquittal in S.T.C.No.225 of
2007, dated 22.12.2009 passed by the learned District Munsif,
Pudukkottai and convict the accused in accordance with law.
For Appellant : Mr.R.Murali
JUDGMENT
This appeal has been filed as against the order of
acquittal passed in S.T.C.No.225 of 2007, dated 22.12.2009, on the
file of the learned District Munsif, Pudukkottai.
https://www.mhc.tn.gov.in/judis
CRL.A.(MD).No.110 of 2010
2.The appellant is the complainant and the respondent
is an accused in the complaint lodged for the offence punishable
under Section 138 of the Negotiable Instruments Act.
3.The crux of the complaint is that the respondent
borrowed a loan for a sum of Rs.5,00,000/- in order to develop his
business from the appellant on 16.12.2004. On the same date, he
issued a post-dated cheque for the said sum. The said cheque was
presented for collection and the same was returned dishonoured for
the reason 'funds insufficient'. After causing statutory notice, he
lodged the complaint.
4. On the side of the appellant, he had examined P.W.1
and P.W.2 and marked Exs.P.1 to P.11 and on the side of the
respondent, no one was examined and no documents were marked.
5. On perusal of the oral and documentary evidence, the
trial Court found the respondent not guilty for the offence
punishable under Section 138 of the Negotiable Instruments Act and
acquitted him and dismissed the complaint. Aggrieved by the same,
the present Appeal.
https://www.mhc.tn.gov.in/judis
CRL.A.(MD).No.110 of 2010
6.The learned counsel appearing for the appellant would
submit that the respondent lodged the complaint as against the
appellant alleging that the appellant charged exorbitant interest and
also threatened him with dire consequences. On the said complaint,
the Inspector of Police, Ganeshnagar Police Station registered the
FIR in Crime No.759 of 2005 for the offences under Sections 452
and 506(i) of I.P.C and Sections 4 and 9 of the Tamil Nadu
Exorbitant Interest Act, 2003. After completion of the investigation,
filed a final report and the same has been taken cognizance in
C.C.No.330 of 2007 on the file of the learned Judicial Magistrate,
Pudukottai. In that case, the respondent categorically admitted that
he signed in the cheque and issued it in favour of the appellant
herein. That apart, the said case was ended in acquittal. The
respondent categorically admitted his signature and issuance of the
cheque. Therefore, the appellant discharged his initial burden as
contemplated under Section 138 of the Negotiable Instruments Act.
However, the respondent failed to rebut the presumption and as
such, the respondent ought to have been convicted for the offence
punishable under Section 138 of the Negotiable Instruments Act.
The trial Court also acquitted the appellant on the ground that the
cheque was issued in favour of the partnership firm and as such the
appellant ought to have issued notice to the partnership firm and
also implead the partnership firm as an accused along with other
https://www.mhc.tn.gov.in/judis
CRL.A.(MD).No.110 of 2010
partners. Therefore, non impleadment of the partnership firm as an
accused is fatal to the case of the appellant. In spite of the cheque
being drawn in favour of the partnership firm, it is not mandatory on
the part of the appellant to implead the partnership firm as a party
to the criminal proceedings.
7.The learned counsel appearing for the appellant also
relied upon the Judgment of this Court in Crl.A(MD)No.523 of
2008, date 09.06.2010 (Ramaraju Vs. Mohammed Thaiyuf),
in which, this Court referred the Judgment of the Honourable
Supreme Court of India that even if the company is not prosecuted
for one or the other reason the other prosecuted persons cannot, on
that score alone, escape from the penal liability created through the
legal fiction envisaged under Section 141 of the Negotiable
Instruments Act. Therefore, he prayed for convicting the respondent
for the offence punishable under Section 138 of the Negotiable
Instruments Act.
8.Heard the learned counsel appearing for the appellant
and perused the materials available on record.
https://www.mhc.tn.gov.in/judis
CRL.A.(MD).No.110 of 2010
9.Admittedly, the alleged cheque which was marked as
Ex.P1 was issued for 'Tyba Granites' and is a partnership firm. It
was signed by the managing partner on behalf of 'Tyba Granites'.
Therefore, it was not issued in the personal capacity of the
respondent herein. When the cheque was issued on behalf of the
partnership firm, the appellant ought to have implead the
partnership firm as an accused along with other partners. That
apart, the appellant failed to state in the complaint that the
respondent is the managing partner of 'Tyba Granites' partnership
firm, and he actively participated in the day-to-day affairs of the
partnership firm. It is necessary to specifically aver in the complaint
that at the time of the offence committed, the present accused was
in charge of the business and has to make any complaint. Without
the said averments, the requirement under Section 141 of the
Negotiable Instruments Act cannot be said to be satisfied. That
apart, there is no averment in the complaint as to how and in what
manner that respondent was responsible for the contact of the
business partnership firm or otherwise responsible to it in regard to
its functioning. The appellant failed to state how the respondent is
responsible for dishonour of the cheque which was issued by the
partnership firm.
https://www.mhc.tn.gov.in/judis
CRL.A.(MD).No.110 of 2010
10.That apart, the complainant failed to prove that the
cheque was issued for any legally enforceable debt, since the
appellant is being the Financier and doing money lending business.
In fact, the respondent lodged a complaint as against the appellant
for claiming exorbitant interest and the same was registered in
Crime No.759 of 2005 for the offences under Sections 452 and
506(i) of I.P.C and Sections 4 and 9 of the Tamil Nadu Exorbitant
Interest Act, 2003 and the same has been taken cognizance in
C.C.No.330 of 2007 on the file of the learned Judicial Magistrate,
Pudukottai. Though it was ended in acquittal, it revealed that the
appellant doing a money lending business. When it being so, no
moneylender lends money without any security purpose. In the case
on hand, except the cheque which was marked as Ex.P.1, no other
document was received by the appellant at the time of lending loan
to the tune of Rs.5,00,000/-. Therefore, the trial Court rightly
dismissed the complaint and acquitted the respondent. Hence, this
Court finds no infirmity or illegality in the order passed by the Court
below. Accordingly, this Criminal Appeal is dismissed.
12.04.2023
NCC : Yes/No
Index : Yes/No
Internet : Yes
ps
https://www.mhc.tn.gov.in/judis
CRL.A.(MD).No.110 of 2010
To
The District Munsif,
Pudukkottai.
https://www.mhc.tn.gov.in/judis
CRL.A.(MD).No.110 of 2010
G.K.ILANTHIRAIYAN, J.
ps
CRL.A.(MD).No.110 of 2010
12.04.2023
https://www.mhc.tn.gov.in/judis
