Madras High Court
Aishwarya Jayanthi vs Vignesh & Co on 27 June, 2023
Crl.O.P.No.5272 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 27.06.2023
CORAM
THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR
Crl.O.P.No.5272 of 2022
and
Crl.M.P.Nos.2843 & 2845 of 2022
Aishwarya Jayanthi
Wife of V.Sudhakaran
5050 H Block, 28th Street
Ponni Colony, Anna Nagar West,
Chennai 600 040. .. Petitioner
Vs.
Vignesh & Co.,
Rep. by its Partner J.Babu
Having its office at No.245,
VGP Nagar, Muggapair West
Chennai 600 037. .. Respondents
PRAYER : This Criminal Original Petition is filed under Section 482 of Cr.P.C.,
to call for records relating to STC.No.187 of 2020 on the file of the Fast Track
Court (Magisterial Level) at Ambattur and quash the same against the
Petitioner.
For Petitioner : Mr.S.Kathiravan
For Respondent : Mr.A.Gokulakrishnan (for R1)
Mr.N.Manokaran
for Mr.P.Krishnan (for R2)
https://www.mhc.tn.gov.in/judis
1/8
Crl.O.P.No.5272 of 2022
ORDER
This Criminal Original Petition has been filed to call for records
relating to STC.No.187 of 2020 on the file of the Fast Track Court (Magisterial
Level) at Ambattur and quash the same against the Petitioner.
2.The Petitioner/Accused-3 in C.C.No.187/2020 facing trial on a
private complaint filed by the Respondent for the offences u/s.138 & 141 of the
Negotiable Instruments Act has filed this quash Petition.
3.The gist of the complaint is that the Petitioner is the Director of
M/s.Merck Automobile along with her husband viz., V.Sudhakaran, Managing
Director. A-1 is company, A-2 is her husband, A-3 is the Petitioner.
Petitioner's company was involved in buying and selling of used luxury cars,
who had issued an advertisement, thereby seeking for investment for their
business. The nature of business of A-1 company is that they would buy used
cars or cars, which are met with accident in auction from the finance companies
at a lesser rates, then rectify the defects and thereafter sell it in the market. The
profit made would be shared with the investors of the Respondent company.
The Respondent company/ complainant had invested in seven cars to the tune of
Rs.81,77,000/-. The Petitioner's company though had purchased seven cars,
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Crl.O.P.No.5272 of 2022
rectified and sold the same for profit, failed to make payment on a car to car
basis and hence, had due of Rs.81,77,0000/-, for which it discharged a portion
of liability towards part payment and gave four cheques to the tune of
Rs.32,00,000/-. When the cheques were presented, the same were dishonoured.
Thereafter, notice was issued, which was returned, following the proceedure
under Section 138 of NI Act, case has been filed before the trial Court.
4.The primary contention of the Petitioner is that the Petitioner is only
a name lender, it is her husband A-2, who is carrying on the business of A-1
and actively taking part in the day to day activities. For sentimental reasons
only, the Petitioner's name has been included and nothing more. Learned
counsel for the Petitioner further submits that the entire business had been
carrying out by her husband, the memorandum of understanding entered
between the Respondent/complainant and the Petitioner's company has been
signed by her husband and the Petitioner had not signed in any of the business
documents.
5.Learned counsel for the Petitioner further submits that in this case,
admittedly cheques have been signed by A-2 on behalf of A-1. No doubt
cheques have been issued in the name of the A-1 company, there is no averment
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Crl.O.P.No.5272 of 2022
either in the complaint or in the sworn statement against the Petitioner, apart
from the referring that the Petitioner is the Director of A1/company. In view of
the same, the learned counsel for the Petitioner relying upon the judgment of the
Hon'ble Apex Court in the case of S.M.S. Pharmaceuticals Limited vs. Neeta
Bhalla and another reported in (2007) 4 SCC 70, which has been consistently
followed till date by the Hon'ble Apex Court as well as this Court in many of the
Judgment, wherein it has been clearly held that merely being a Director of a
company would not sufficient to make the person liable u/s.141 of the NI Act
and in the complaint apart from being the Director specific role played by the
Accused/Director have to be stated. In this case, there is no such averments.
6.Mr.N.Manokaran, learned counsel appearing for the second
Respondent/Complainant submitted that the Petitioner by conduct would clearly
prove that she had been actively involved in the business of A-
1/company. The Petitioner had not denied that she is not the Director of the A-
1/company. Now she tries to wriggle out from the case, on technical plea.
Factually, the Petitioner had been actively taking part in the business right from
beginning and the scheme has been well devised by the Petitioner. Hence
though she had actively participated in the business, it seems that she had not
signed any documents and now taking the same as advantage, projecting that
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Crl.O.P.No.5272 of 2022
she is only a name lender. The points raised by the Petitioner are to be decided
during the trial and opposed this Petition.
7.Learned counsel for the second Respondent further submits that the
Petitioner is yet to cross examine the witnesses and put forth the defence. In
such circumstances, the Petitioner now taking advantage of averments not
available, cannot be considered at this stage. The Respondent had lost around
Rs.81,75,000/- in the business. The cheuques involved is only a part amount, to
tune of Rs.35,00,000/- and opposed the Petition.
8.Learned counsel for the Respondent further submits that in this case,
though the complaint was filed under Section 138 of NI Act in the year 2020,
for the past three years the case has been kept pending, for one reason or other
and sought direction to the trial Court to complete the trial within a stipulated
period.
9.Considering the submissions made by the learned counsel on either
sides and perusal of the materials, I find that in the complaint at paragraph 12,
invoking section 141, it is refereed that A-3/Petitioner is aware of dealings and
payments. But in the sworn statement, the above averments is missing.
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Crl.O.P.No.5272 of 2022
Further in the MoU entered between the A-1 & A2 on 16.03.2019, the
Petitioner has not signed the same. The MoU forms part of the complaint. It
refers to in the complaint at paragraph 3.
10.In view of the above, I find that there is no averments to show that
the Petitioner has actively taken part in the day to day affairs of A-
1/company and following the Hon'ble Apex Court's judgment in the case of
S.M.S. Pharmaceuticals Limited vs. Neeta Bhalla and another reported in
(2007) 4 SCC 70, which is consistently followed by this Court, this Court is
inclined to accept the contention of the Petitioner. In view of the same,
complaint in S.T.C.No.187 of 2020, on the file of the Fast Track Court
(Magisterial level) at Ambattur as against A-3 alone is quashed.
11.It seems that in STC.No.187 of 2020 on the file of Fast Track Court
(Magisterial level) at Ambattur, there is only one witness and chief examination
of the said witness is completed. There are no other witnesses. Hence, 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.
12.With the above direction, this Petition is allowed. Consequently,
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Crl.O.P.No.5272 of 2022
connected Miscellaneous Petitions are closed.
27.06.2023
sai
Index : Yes/No
Neutral citation : Yes/No
Speaking order/Non-speaking order
To
1.The Fast Track Court (Magisterial Level)
Ambattur
2.The Public Prosecutor,
High Court of Madras.
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.5272 of 2022
M.NIRMAL KUMAR, J.
sai
Crl.O.P.No.5272 of 2022
and
Crl.M.P.Nos.2843 & 2845 of 2022
Dated: 27.06.2023
https://www.mhc.tn.gov.in/judis
