Parthasarathy v. Subramaniam

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 20.03.2008C O R A MTHE HONOURABLE MR.JUSTICE P.R.SHIVAKUMARCrl.O.P.No.18205 of 2006 and M.P.No.1 & 2 of 2006Parthasarathy .. PetitionerVs.Subramaniam .. Respondent The Criminal Original Petition is filed to call for therecords and quash the proceedings in C.C.No.177 of 2005 pendingon the file of the learned Judicial Magistrate No.II, Pollachi asagainst the petitioner is concerned.For Petitioner: Mr.M.Lakshmanasamy for M/s.V.N.S.Law FirmsFor Respondent: Mr.K.KalyanasundaramO R D E RHeard both sides and perused the materials available onrecord.2. Accused No.2 in C.C.No.177 of 2005 on the file of thelearned Judicial Magistrate No.II, Pollachi, is the petitionerherein. He has sought for an order quashing the said criminalproceedings instituted on a private complaint preferred by theRespondent herein against the petitioner herein and oneNeminathan (accused no.1), describing both of them to beproprietors of M/s.Lakshmipriya Thengai Powder, for an allegedoffence punishable under Section 138 read with 142 of theNegotiable Instruments Act. The cheque in question was issued inthe name of M/s.Lakshmipriya Thengai Powder signed by the saidNeminathan, as its proprietor.3. It is the contention of the learned counsel for thePetitioner that though the petitioner herein has been arrayed as https://hcservices.ecourts.gov.in/hcservices/ second accused in the complaint preferred by the respondentherein, necessary averments to bring him within the ambit ofSection 141 of the Negotiable Instruments Act to make himresponsible for the offence punishable under Section 138 of theNegotiable Instruments Act committed by the business concern,have not been made in the complaint and that in the absence ofsuch averments, the criminal proceedings initiated against thepetitioner herein for such offence cannot be sustained. It isalso not the case of the respondent/complainant that thepetitioner is a signatory to the cheque issued in the name of thebusiness concern. So far as an offence under Section 138 of theNegotiable Instruments Act committed by a company is concerned, apartner of a partnership firm and a director of a company aretreated on par. According to the learned counsel for thepetitioner, a co-proprietor is not to be treated on par with adirector or a partner and a proprietary concern is not deemed tobe a company.4. It is the further contention of the learned counsel forthe petitioner that even assuming that a co-proprietor of aproprietary concern can be equated to a partner of a firm or adirector of a company, there must be necessary averments to bringthe case of such person within the ambit of Section 141 of theNegotiable Instruments Act for prosecuting him for an offencepunishable under Section 138. According to his contention, thereis total absence of averment to the said effect. This court,after going through the records, is satisfied with thecorrectness of the said submission made by the learned counselfor the Petitioner. Therefore this court comes to the conclusionthat the petitioner has made out a case for quashing the criminalproceedings initiated on the basis of the private complaintpreferred by the respondent herein against him. 5. Yet another vital point has also been raised by thepetitioner herein, questioning the proprietary of the order ofthe learned Judicial Magistrate taking the complaint on file andregistering it as a calendar case. The learned counsel for thepetitioner has submitted that the complaint should not have beentaken on file without the production of the original dishonouredcheque. In support of his contention the learned counsel reliedon the judgement of this Court in R.Sarathkumar Vs. Inspector ofPolice, C9 Police Station, Neelankarai, Chennai reported in 2004MLJ (Crl.) 421. The following guidelines have been issued bythis court in the above said judgement relied on by the learnedcounsel for the petitioner. https://hcservices.ecourts.gov.in/hcservices/ "(1) At the time of taking the complaint on file,the original cheques shall be produced before theMagistrate.(2) The Magistrate shall after affixing the seal ofthe Court with the date and entering the otherparticulars such as Registration number, make anendorsement to that effect on the back of theoriginal cheque.(3) Thereafter, the original cheque may be returnedto the complainant; a photocopy of the dishonouredcheque may be attached with the complaint.(4) The original cheque shall be marked whileadducing the evidence. (photo-copies are notadmissible in evidence when the originals areavailable).(5) Summons to the respondents shall be sent alongwith the copy of the complaint.(6) After the service of summons, if the respondentdoes not appear, only bailable warrant shall beissued since the offence is bailable.(7) While issuing such warrant reasons for issuingwarrant of arrest shall be recorded.(8) If, even after the execution of the bailablewarrant, the respondent does not appear, thesecurities furnished shall be forfeited, and a non-bailable warrant may also be issued.As per the said guidelines, in case the original cheque isavailable with the complainant, the same must be produced beforethe Judicial Magistrate at the time of taking the complaint onfile. The following are also the observations made in the abovesaid case namely R.Sarathkumar Vs. Inspector of Police, C9Police Station, Neelankarai, Chennai " While filing of the complaint under Sec.138 ofthe Negotiable Instruments Act, the originaldishonoured cheques (on which the complaint isbased) shall be produced; the Magistrate shall makean endorsement on the back of such originalcheques, after affixing the Court seal and also https://hcservices.ecourts.gov.in/hcservices/ entering the complaint-registration number. Onlyafter that, a photocopy of the cheque may bereceived; the original cheque maybe returned to thecomplainant to be produced while examination ofwitnesses. The photo-copy of the dishonouredcheque cannot be marked as an exhibit in the case,except where secondary evidence is permissible asper the provision of the Evidence Act;6. A consideration of the above said observation will showthat the general rule is that the original cheque should beproduced at the time of taking the complaint on file with theexception that wherever secondary evidence is permissibleproduction of the original cheque cannot be insisted upon. Butnecessary pleadings should have been made to make out a case forthe production of secondary evidence in proof of the dishonouredcheque. In this case, the learned counsel for the petitioner hasrightly contended that necessary averments are lacking in thecomplaint for accepting secondary evidence in proof of thedishonoured cheque. Though the said contention raised by thelearned counsel for the petitioner seems to be correct, thiscourt is of the view that taking the complaint on file withoutthe production of the original dishonoured cheque is only anirregularity which can be cured later on by the production of theoriginal and that hence the same shall not be sole ground onwhich the criminal proceedings instituted on private complaintitself could be quashed. On the other hand, as pointed out inparagraph 4, the respondent/complainant has not made avermentssufficient for prosecuting the petitioner herein as a co-proprietor of the proprietary concern so as to bring the caseagainst the petitioner within the ambit of Section 141 of theNegotiable Instruments Act. 7. Accordingly, the Criminal Original Petition is allowedand the posecution launched on the private complaint of therespondent/complainant herein in C.C.No.177 of 2005 on the fileof the learned Judicial Magistrate, Pollachi is quashed in so faras the petitioner is concerned. Consequently, the connectedpetition is closed.asrSd/-Asst. Registrar./true copy/Sub Asst. Registrar. https://hcservices.ecourts.gov.in/hcservices/ ToThe Judicial Magistrate No.II, Pollachi1 cc to M/s.V.N.S.Law Firms, Advocate, SR.160181 cc to Mr.K.Kalyanasundaram, Advocate, SR.16139bvn (co)dv/16.4.Crl.O.P.No.18205 of 2006andM.P.No.1 & 2 of 2006