Madras High Court
K.Saravanan vs J.Balasanthanan on 9 March, 2023
Crl.O.P.No.24924 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 09.03.2023
CORAM:
THE HON'BLE MR.JUSTICE SUNDER MOHAN
Crl.O.P.No.24924 of 2019 and
Crl.M.P.Nos.10986 & 10987 of 2019
K.Saravanan ... Petitioner
Vs.
J.Balasanthanan ... Respondent
PRAYER : Criminal Original Petition is filed under Section 482 of Cr.P.C., to
call for the records in STC No.962 of 2018 on the file of Learned Judicial
Magistrate No.II, Salem and quash the same.
For Petitioner : Mr.S.Senthil
For Respondent : No appearance
ORDER
This petition is filed to quash the complaint under Section 138 of the
Negotiable Instruments Act. It is alleged that the accused is running a
concern called as “S.K.Oil Mills. The accused and the complainant are friends
for the past five years. The accused had borrowed a sum of Rs.15 lakhs for
business purpose. For discharge the said liability, the petitioner issued a
cheque on 12.03.2018 for the said sum. However, when the cheque was
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.24924 of 2019
presented, it was returned unpaid for the reasons, 'funds insufficient'. Though
statutory notice was issued to the petitioner, he had not made any payment and
hence, the complaint.
2. Learned counsel for the petitioner submitted that the cheque was
issued in the name of the partnership concern by name 'S.K.Oil Mill'. The
petitioner had issued a cheque from the account of the partnership firm in his
capacity as Managing Director. However, in the complaint, the partnership
concern is not shown as accused. Hence, this complaint is not maintainable
without arraigning the partnership concern as an accused as against the
petitioner who is the Managing Partner. The learned counsel relied upon the
judgment of the Hon'ble Apex Court in Aneeta Hada v.Godfather Travels
and Tour Private Limited (2012) 5 SCC 661 and Himanshu v.
B.Shivamurthy and Another (2019) 3 SCC 797.
3. Though notice was served on the respondent, the respondent has not
entered appearance before this Court.
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.24924 of 2019
4. A reading of the complaint and the cheque produced by the petitioner
shows that the cheque was issued from the account of the partnership firm.
However, the complainant has not sent the statutory notice on the partnership
firm and has not made the partnership firm as an accused. This is squarely
covered by the Judgment of the Hon'ble Supreme Court. The relevant portion
of the Judgment of the Hon'ble Supreme Court in (2019) 3 SCC 797 is
extracted herein:
“13. In the absence of the company being arraigned as an
accused, a complaint against the appellant was therefore not
maintainable. The appellant had signed the cheque as a
Director of the company and for and on its behalf. Moreover, in
the absence of a notice of demand being served on the company
and without compliance with the proviso to Section 138, the
High Court was in error in holding that the company could now
be arraigned as an accused.”
The Hon'ble Apex Court considered various judgments including the judgment
in Aneeta Hada and Godfather Travels and Tour Private Limited reported
in (2012) 5 SCC 661 and made the above observations.
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Crl.O.P.No.24924 of 2019
5. In view of the settled position of law, since the partnership firm,
which is the principal offender, has not been made an accused, the petitioner
alone, who is only vicariously liable as Managing Director cannot be
prosecuted. Therefore, this impugned complaint in S.T.C.No.962 of 2018 is
quashed and hence, this Criminal Original Petition is allowed. Consequently,
connected miscellaneous petitions are closed.
09.03.2023
Index: Yes/No
Speaking Order / Non-Speaking Order
Neutral Citation: Yes / No
kal
To
The Judicial Magistrate No.II,
Salem
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.24924 of 2019
SUNDER MOHAN, J
kal
Crl.O.P.No.24924 of 2019 and
Crl.M.P.Nos.10986 & 10987 of 2019
09.03.2023
https://www.mhc.tn.gov.in/judis
