Madras High Court
S.Josephine Evert vs M.S.Senthil Arumugam on 25 September, 2023
Crl.O.P.(MD)No.11680 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 25.09.2023
CORAM
THE HON'BLE MR.JUSTICE P.DHANABAL
Crl.O.P.(MD)No.11680 of 2020
and
Crl.M.P.(MD)No.5332 of 2020
1.S.Josephine Evert
2.S.Prabu Kanth
3.M.Krishnaraj
4.M.Sankar Raj
5.T.Ramar ... Petitioners
Vs.
M.S.Senthil Arumugam ... Respondent
PRAYER : Criminal Original Petition filed under Section 482 of the
Code of Criminal Procedure, to call for the records of the proceedings in
C.C.No.71 of 2019 on the file of the Judicial Magistrate Court (Fast
Track Court), Thoothukudi, quash the same as against the petitioners.
For Petitioners : Mr.R.J.Karthick
1/8
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD)No.11680 of 2020
For Respondent : No Appearance.
ORDER
This Criminal Original Petition has been filed to quash the
proceedings in C.C.No.71 of 2019 on the file of the Judicial Magistrate
Court (Fast Track Court), Thoothukudi as against the petitioners.
2.According to the petitioners, the respondent has filed cheque
complaint before the learned Judicial Magistrate, Thoothukudi as against
the petitioners and A1. As per the complaint, these petitioners along
with A1 obtained loan from the respondent and thereafter, issued cheque
for the said loan amount of Rs.40 Lakhs and A1 issued cheque and
executed pro-notes. These petitioners herein are partners of the firm.
When the cheque was presented for collection, it was returned unpaid
with an endorsement “insufficient funds”. Therefore, the respondent
issued notice to all the accused. These petitioners also issued reply
stating that the partnership firm was dissolved and the petitioners have
not signed in the cheque and A1 only signed the cheque. Therefore,
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Crl.O.P.(MD)No.11680 of 2020
offence under Section 138 of the Negotiable Instruments Act would not
attract as against the petitioners herein. Therefore, the pending
proceedings in C.C.No.71 of 2019 is liable to be quashed as against the
petitioners herein.
3.No counter was filed by the respondent. None appeared on
behalf of the respondent, inspite of so many chances given to him.
4.The learned counsel appearing for the petitioners would contend
that these petitioners herein are not signatories of the cheque and A1
alone signed in the cheque. These petitioners herein are partners and
there is no averment in the complaint as to how the petitioners are
responsible. Mere because of the petitioners are partners of the firm,
their name were included in the complaint. Since A1 along signed in the
cheque, the petitioners are no way responsible. In support of his
contention, he relied upon the judgment of the Hon’ble Supreme Court in
a case of Aparna A.Shah Vs. M/s.Sheth Developers Pvt.Ltd. & Anr
reported in 2013 8 SCC 71.
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Crl.O.P.(MD)No.11680 of 2020
5.This Court heard both sides and perused the materials available
in the record.
6.The main contention of the petitioners is that they are not
signatories of the cheque and A1 alone issued cheque. Though the
petitioners are partners of the firm, there is no averments as to how this
petitioners are responsible for the above said cheque. That apart, already
the partnership firm was dissolved and the cheque was misused by A1.
Even according to the complaint, since the petitioners are signatories of
the cheque, they cannot be prosecute for the offence under Section 138
NI Act.
7.The learned counsel for the petitioners relied upon the judgment
of the Hon’ble Supreme Court in a case of Aparna A.Shah Vs. M/s.Sheth
Developers Pvt.Ltd. & Anr reported in 2013 8 SCC 71, wherein, the
Hon’ble Supreme Court held as follows:-
21)In the light of the principles as discussed in the
earlier paras, we fully endorse the view expressed by the
learned Judges of the Madras, Delhi and Punjab & Haryana
High Courts.
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Crl.O.P.(MD)No.11680 of 2020
22)In the light of the above discussion, we hold that
under Section 138 of the Act, it is only the drawer of the
cheque who can be prosecuted. In the case on hand,
admittedly, the appellant is not a drawer of the cheque and
she has not signed the same. A copy of the cheque was
brought to our notice, though it contains name of the
appellant and her husband, the fact remains that her
husband alone put his signature. In addition to the same, a
bare reading of the complaint as also the affidavit of
examination-in- chief of the complainant and a bare look at
the cheque would show that the appellant has not signed the
cheque.
23)We also hold that under Section 138 of the N.I. Act,
in case of issuance of cheque from joint accounts, a joint
account holder cannot be prosecuted unless the cheque has
been signed by each and every person who is a joint account
holder. The said principle is an exception to Section 141 of
the N.I. Act which would have no application in the case on
hand. The proceedings filed under Section 138 cannot be
used as an arm twisting tactics to recover the amount
allegedly due from the appellant. It cannot be said that the
complainant has no remedy against the appellant but
certainly not under Section 138. The culpability attached to
dishonour of a cheque can, in no case “except in case of
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Crl.O.P.(MD)No.11680 of 2020
Section 141 of the N.I. Act” be extended to those on whose
behalf the cheque is issued. This Court reiterates that it is
only the drawer of the cheque who can be made an accused
in any proceeding under Section 138 of the Act. Even the
High Court has specifically recorded the stand of the
appellant that she was not the signatory of the cheque but
rejected the contention that the amount was not due and
payable by her solely on the ground that the trial is in
progress. It is to be noted that only after issuance of process,
a person can approach the High Court seeking quashing of
the same on various grounds available to him. Accordingly,
the High Court was clearly wrong in holding that the prayer
of the appellant cannot even be considered. Further, the
High Court itself has directed the Magistrate to carry out the
process of admission/denial of documents. In such
circumstances, it cannot be concluded that the trial is in
advanced stage.
On careful reading of the above said judgment, it is clear that the offence
under Section 138 of the N.I. Act, in case of issuance of cheque from
joint accounts, a joint account holder cannot be prosecuted unless the
cheque has been signed by each and every person who is a joint account
holder. As per Section 138 of the Act, it is only the drawer of the cheque
who can be prosecuted.
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Crl.O.P.(MD)No.11680 of 2020
8In the case on hand also, the petitioners herein are not signatories
of the cheque. Further, there is no specific averment in the complaint in
what manner the petitioners were connected to the business of the
company and it is only stated that the petitioners are being partners also
responsible. In view of the above said judgment and considering the facts
and circumstances of the case, it is appropriate to allow this petition.
Accordingly, this criminal original petition is allowed and proceedings in
C.C.No.71 of 2019 pending on the file of the Judicial Magistrate Court
(Fast Track Court), Thoothukudi is hereby quashed as against these
petitioners. Consequently, connected miscellaneous petition is closed.
25.09.2023
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
gns
To
The Judicial Magistrate Court (Fast Track Court),
Thoothukudi.
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD)No.11680 of 2020
P. DHANABAL,J.
gns
Crl.O.P.(MD)No.11680 of 2020
25.09.2023
https://www.mhc.tn.gov.in/judis
