Madras High Court
A.Loganathan vs K.Pathasarathy on 13 September, 2023
Crl.O.P.Nos.18693 of 2023 and 20550 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 13.09.2023
CORAM :
THE HON'BLE MR.JUSTICE N.ANAND VENKATESH
Crl.O.P.Nos.18693 of 2023 and 20550 of 2022
and Crl.M.P.Nos.13449 and 13450 of 2022 in Crl.O.P.No.20550 of 2022
In Crl.O.P.No.18693 of 2023 :
A.Loganathan .. Petitioner
Versus
1. K.Pathasarathy
2. D.Sridhar .. Respondents
In Crl.O.P.No.20550 of 2022 :
1. K.Parthasarathy
2. D.Sridhar .. Petitioners
Versus
A.Loganathan .. Respondent
Prayer in Crl.O.P.No.18693 of 2023 : Criminal Original Petition filed
under Section 482 of the Code of Criminal Procedure, to direct the learned
Judicial Magistrate, Alandur to take cognizance of the offences committed
under Sections 415, 405, 409 and 403 of Indian Penal Code as well in the
complaint in C.C.No.137 of 2022 and conduct trial in respect of the same
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Crl.O.P.Nos.18693 of 2023 and 20550 of 2022
along with offence punishable under Sec.138 of Negotiable Instruments
Act, 1881 in accordance with law.
Prayer in Crl.O.P.No.20550 of 2022 : Criminal Original Petition filed
under Section 482 of the Code of Criminal Procedure, to call for the records
and to quash the proceedings in C.C.No.137 of 2022 pending on the file of
the learned Judicial Magistrate, F.T.C, Alandur.
For Petitioner : Mr.E.Elayaraj Kumar
(in Crl.O.P.No.18693 of 2023) for Mr.T.Sundaranathan
For Petitioner : M/s.S.Elambharathi
(in Crl.O.P.No.20550 of 2022)
ORDER
The issue involved in both these cases is common and hence, both the
petitions are taken up together, heard and disposed off through this common
order.
2. Crl.O.P.No.20550 of 2022 has been filed by the petitioners herein
to quash the proceedings in C.C.No.137 of 2022 pending on the file of the
learned Judicial Magistrate, F.T.C, Alandur. Crl.O.P.No.18693 of 2023 has
been filed by the complainant challenging the cognizance order passed by
the learned Judicial Magistrate, F.T.C, Magisterial level, Alandur, dated
26.05.2022.
https://www.mhc.tn.gov.in/judis
Crl.O.P.Nos.18693 of 2023 and 20550 of 2022
3. Heard Mr.E.Elayaraj Kumar, learned Counsel for the petitioner in
Crl.O.P.No.18693 of 2023 and M/s.S.Elambharathi, learned Counsel for the
petitioners in Crl.O.P.No.20550 of 2022.
4. The petitioner in Crl.O.P.No.18693 of 2023 is the complainant and
he filed a complaint before the Court below against the petitioners in
Crl.O.P.No.20550 of 2022 for offence under Section 138 of the Negotiable
Instruments Act, 1881 and for offence of cheating. The Court below took
cognizance by order, dated 26.05.2022 for offence under Section 138 of the
Negotiable Instruments Act, 1881 and issued summons to the accused
persons.
5. The petitioners in Crl.O.P.No.20550 of 2022 contend that the first
petitioner is the signatory to the cheque and the second petitioner,
admittedly did not issue the cheque in favour of the complainant. In view of
the same, the second petitioner has taken a stand that he cannot be made to
face the prosecution for offence under Section 138 of the Negotiable
Instruments Act, 1881 since he is not the drawer of the cheque.
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Crl.O.P.Nos.18693 of 2023 and 20550 of 2022
6. The first petitioner has taken a stand that the cheque was given as
security for a transaction that took place between the complainant and one
Iruthayam Sugadoss and the said person has already been declared as
insolvent and the complainant had already made a claim by filing an
application for the very same amount of Rs.65,00,000/-. Therefore,
according to the first petitioner, this vital fact has been concealed and the
complaint has been filed and further, the cheque that was given as security
has been misused. On these grounds, the first petitioner is seeking for
quash of the proceedings pending before the Court below.
7. The case of the complainant is that the complaint was given not
only for offence under Section 138 of the Negotiable Instruments Act, 1881
but also for the offence of cheating and criminal breach of trust. According
to the complainant, the Court below went wrong in taking cognizance of the
complaint only for offence under Section 138 of the Negotiable Instruments
Act, 1881. Hence, the cognizance order has been put to challenge.
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Crl.O.P.Nos.18693 of 2023 and 20550 of 2022
8. This Court carefully went through the complaint filed in
C.C.No.137 of 2022. On going through the same, prima facie, the offence is
made out for offence under Section 138 of the Negotiable Instruments Act,
1881. The Court below while taking cognizance by order, dated 26.05.2022
had given reasons as to why the cognizance was taken only for offence
under Section 138 of the Negotiable Instruments Act, 1881. The order does
not suffer from any infirmity or illegality and it does not warrant
interference of this Court.
9. The second petitioner in Crl.O.P.No.20550 of 2022 is admittedly
not the drawer of the cheque. Hence, the proceedings cannot be continued
as against the second petitioner for offence under Section 138 of the
Negotiable Instruments Act, 1881. Consequently, insofar as the second
petitioner is concerned, the proceedings will have to be interfered.
10. The issue that has been raised by the first petitioner requires
appreciation of facts and that exercise cannot be done in this quash petition.
It is therefore left open to the first petitioner to raise all the grounds before
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Crl.O.P.Nos.18693 of 2023 and 20550 of 2022
the Court below and the same will be considered on its own merits and in
accordance with law.
11. It is made clear that if in the course of the proceedings, the
offence of cheating / criminal breach of trust is also made out, it is always
left open to the Court to exercise its jurisdiction under Section 216 of
Cr.P.C., by altering the charges. Except giving this clarity, there is no scope
for interfering with the cognizance order, dated 26.05.2022.
12. The learned Counsel for the petitioners in Crl.O.P.No.20550 of
2022 requested this Court to dispense with the appearance of the first
petitioner by considering his age. Taking into consideration, the facts and
circumstances of the case, the presence of the first petitioner is dispensed
with and he shall be represented by a Counsel, who shall cross examine the
witnesses on the same day, they are examined in Chief. The first petitioner
shall be present before the Court below at the time of questioning under
Section 251 of Cr.P.C., questioning under Section 313 of Cr.P.C., and at the
time of passing of the final judgment. Accordingly, the Court below shall
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Crl.O.P.Nos.18693 of 2023 and 20550 of 2022
dispose off C.C.No.137 of 2022 within a period of six months from the date
of receipt of a copy of this order.
13. In the result, Crl.O.P.No.20550 of 2022 is partly allowed and the
proceedings in C.C.No.137 of 2022 is quashed insofar as the second
petitioner is concerned. The cognizance order passed by the Court below,
dated 26.05.2022 is not liable to be interfered. However, the above clarity
given by this Court regarding the alteration of charges, if required, will
sufficiently safeguard the right of the complainant. Accordingly,
Crl.O.P.No.18693 of 2023 stands disposed off. Consequently, connected
miscellaneous petitions are closed.
13.09.2023
Index : yes/no
Speaking order/Non-speaking order
Neutral Citation : yes/no
grs
To
The Judicial Magistrate,
Fast Track Court,
Alandur.
https://www.mhc.tn.gov.in/judis
Crl.O.P.Nos.18693 of 2023 and 20550 of 2022
N.ANAND VENKATESH, J.
grs
Crl.O.P.Nos.18693 of 2023
and 20550 of 2022
13.09.2023
https://www.mhc.tn.gov.in/judis
