Madras High Court
Deepa vs / on 9 August, 2024
Author: G.Jayachandran
Bench: G.Jayachandran
Crl.O.P.No.9382 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 09.08.2024
Coram:
THE HONOURABLE Dr. JUSTICE G.JAYACHANDRAN
Crl.O.P.No.9382 of 2024
Deepa. ... Petitioner/Accused No.3
/versus/
K.Saravana Kumar. ... Respondent/Complainant
Prayer: Criminal Original Petition has been filed under Section 482 of the
Criminal Procedure Code, to call for the entire records in S.T.C.No.25 of 2023
from the file of the Special Judicial Magistrate Court (Fast Track Court), Omalur,
Salem District and quash the same so far as the petitioner/3rd accused is concerned.
For Petitioner : Mr.D.Shivakumaran
For Respondent : Mr.T.Balaji
ORDER
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This Criminal Original petition is filed to quash the S.T.C.No.25 of
2023 on the file of the Special Judicial Magistrate Court (Fast Track Court),
Omalur, Salem District.
2. The petitioner herein is one of the partner in an unregistered
partnership firm by name, M/s.G.P Constructions. Along with Partnership firm and
the other partner, she is facing criminal prosecution in S.T.C.No.25 of 2023 on the
file of Judicial Magistrate, Fast Track Court, Omalur, Salem District. The
petitioner submits that she being the wife of the 2nd accused, is a non-functional
partner, she has no knowledge about the issuance of cheque nor she has involved in
the day-to-day affairs of the partnership firm. When statutory notice was issued,
she along with other partner has replied to the complainant stating that she has not
involved in the day-to-day affairs of the business and she is not signatory to any
document related to the business of M/s.G.P.Constructions (1st accused). Hence, no
liability can be fasten upon her for the subject cheque alleged to have been given
by A2 during business transaction. Despite specific denial of liability vicariously,
the complaint been filed and same taken cognizance without proper application of
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mind.
3. The Learned Counsel for the petitioner submitted that in the
statutory notice as well as in the complaint and also in the proof affidavit filed in
lieu of chief examination, the consent and connivance of the petitioner has not
been stated.
4. Per contra, the Learned Counsel for the complainant submitted that
there is specific averment in the complaint that the accused 1 to 3 had promised to
honour the cheque at the time of presentation. Therefore, he submit that the
contention of the petitioner's Counsel that no averment in the complaint regarding
petitioner's knowledge, consent, connivance and role in the affairs of the Company
is unsustainable.
5. The Learned Counsel for the respondent also relied upon the
judgment of the Hon'ble Supreme Court in S.P.Mani and Mohan Dairy -vs-
Snehalatha Elangovan reported in 2020 SCC Online 1238, wherein, it has held
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that when there is material disclosed in the complaint and statutory notice
regarding the knowledge of the Partner/Director regarding issuing of cheque, it is
sufficient to fasten the vicarious liability upon such Directors/Partners under
Section 141(2) of N.I Act.
6. This Court, after giving anxious consideration of the rival
submissions and scrutiny of the statutory notice as well as the complaint find that
the subject cheque was signed and given by A2 as an authorised signatory of A1's
firm for discharge of debt of Rs.46,60,000/-. It was a post-dated cheque and in the
complaint, it is specifically stated that the post-dated cheque was given to the
complainant on 03.12.2022 by A2.
7. The subsequent averment that A3/the petitioner herein along with
A2 promised to honour the cheque was not on the date of issuing the post-dated
cheque which is the subject matter of the complaint but a subsequent event. Even if
that to be accepted, the reading of Section 141(2) of N.I Act indicates that the
vicarious liability upon the Directors or Partners can be fixed only if they were in
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active participation of the affairs of the Company and also had knowledge about
the issuance of the cheque.
8. In the case in hand, both in the statutory notice as well as in the
complaint it is specifically stated that on 03.12.2022 the subject cheque was issued
only by A2. While so, the observation of the Hon'ble Supreme Court in S.P Mani
& Dairy case cited supra, that the cheque was issued with consent of the non-
signatory Partners will attract offence under Section 138 of N.I Act will not apply.
9. In such circumstances, this Criminal Original Petition is allowed
against A3/the petitioner herein alone. The trial Court shall proceed against A1
and A2 and dispose of the matter preferably within a period of three months, from
the date of receipt of copy of this order.
09.08.2024
Index :Yes/No.
Internet :Yes/No.
bsm
Dr.G.JAYACHANDRAN, J.
bsm
Copy to:-
https://www.mhc.tn.gov.in/judis
1. The Special Judicial Magistrate Court (Fast Track Court), Omalur, Salem
District.
09.08.2024
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