M.Seethalakshmi v. Suresh Bafna
Case at a glance
Outcome
Quashed
Therefore theproceedings as against the first petitioner are liable to bequashed and accordingly the same are quashed
Provisions considered
Key paragraphs
- Para 66. In the second judgement cited above, the learnedsingle Judge of this Court on the same subject would hold that" it is noticed that the second petitioner alone is the draweras he has signed the cheque in his individual capacity and notas a Promoter of…
Judgment
IN THE HIGH COURT OF JUDICATURE AT MADRASDated: 18-01-2005Coram; The Honourable Mr. JusticeV.KANAGARAJCRL.O.P.No.33979 of 2004&Crl.M.P.No.10670 of 2004 M.Seethalakshmi... Petitioner/Accused-2Vs.Suresh BafnaProprietor, Mansi Mercantile Co.rep. by his power of AttorneyG.Narasimhalu,s/o Sri G.N.Chetty, No.22,Mulla Saheb Street, Sowcarpet, Chennai-79.... Respondents/ComplainantThis Crl. Original petition is filed under Section 482of Code of Criminal Procedure, as stated therein. For Petitioner: Mr.N. Mohideen Basha For Respondent: No appearanceOrderThis Criminal Original Petition has been filedpraying to call for the records in C.C.No.4099 of 2001 on thefile of VIII Metropolitan Magistrate, George Town, Chennai andquash the proceedings against the petitioner.
On a perusal of the materials placed on record andupon hearing the learned counsel for the petitioner, it comesto be seen that the petitioner/accused No.2 was charged forthe offence under Section 138 of the Negotiable InstrumentsAct, 1881 (hereinafter called as the 'Act') on allegation thatshe stood as a guarantor, for the loan of Rs.10,00,000/-obtained by her husband/main accused from the complainant andonly with her connivance and consent, the cheque bearingNo.757486 dated 2-6-2001 for Rs.10,00,000/- has been issued bythe main accused for the discharge of the said liability; that https://hcservices.ecourts.gov.in/hcservices/ the petitioner has come forward to file the above criminaloriginal petition on ground that the main accused only issuedthe cheque in his individual capacity, therefore, unnecessarily, the petitioner cannot be roped in as an accusedand when she is only a guarantor for the loan amount, thecomplaint against the petitioner on charge of consent andconnivance is not at all maintainable and hence would seek therelief extracted supra.
When the above criminal original petition wastaken up for consideration, no representation has been made onthe part of the respondent. On the other hand the learnedcounsel for the petitioner besides reiterating the facts andcircumstances pleaded in the above criminal original petition, would also cite two decisions, the first one rendered by the Andhra Pradesh High Court in G.SURYA PRABHAVATHI Vs. NEKKANTISUBRAMANYESWARA RAO & ANOTHER (1998 (3) Crimes 543) and thesecond one rendered by this Court reported in GUMMADIINDUSTRIES LTD., & ANOTHER Vs. KHUSHROO F. ENGINEER (2000 (1)Crimes 1) both rendered by the learned single Judgesrespectively.
So far as the first judgement cited above isconcerned in a proceeding under Section 138 of the NegotiableInstruments Act, 1881, on a criminal petition filed before thesaid High Court, wherein among the three accused who are themembers of the joint Hindu family, first accused as the Manager of the joint Hindu family, third accused is his wifeand all the three accused joining hands with each other, haveapproached the complainant and obtained the financialassistance for a sum of Rs.1,50,000/- for the purchase of thecar and in the said transaction, the first accused had issueda cheque dated 1.2.1995 for a sum of Rs.2,56,300/- and onpresentment since for want of sufficient funds in the accountsthe cheque got dishonoured, criminal proceedings wereinitiated under Section 138 of the said Act against all thethree accused and the learned single Judge of the AndhraPradesh High Court having assessed the facts and circumstancesof the case and analysing the import of Section 138 of thesaid Act and remarking that 'where the cheque has been drawnby a person on an account maintained by him with a banker forpayment of money to another person from out of that account, for the discharge, in whole or in part, of any debt or otherliability, was returned by the bank unpaid, either because ofthe amount of money standing to the credit of that account isinsufficient to honour the cheque or that it exceeds theamount arranged to be paid, only such person shall be deemedguilty of the commission of the offence subject to the otherconditions mentioned in proviso to the said Section and if theperson committing the offence under Section 138 of the Act is https://hcservices.ecourts.gov.in/hcservices/ a company, then the person incharge of the company etc., aswell as the company shall be deemed guilty of the offence asprovided under Section 141 of the Act.5.
The learned Judge would further find that theemphasis is on the words "such person" and it is manifest fromthe expression of the words used in Section 138 of the Act. "Such person shall be deemed to have committed the offence"relate to the person who has drawn the cheque in favour ofthe payee and if the cheque is returned unpaid ... suchperson alone is liable but not the other except thecontingencies mentioned under Section 141 of the Act.' Withthe above remarks, the proceeding initiated against the othertwo accused in the said case has been quashed by the learnedsingle Judge.
Operative part
In the second judgement cited above, the learnedsingle Judge of this Court on the same subject would hold that" it is noticed that the second petitioner alone is the draweras he has signed the cheque in his individual capacity and notas a Promoter of the first accused company. 1. Though the cheques were issued by the second petitionertowards the discharge of the liability of the firstpetitioner, the first petitioner company cannot beprosecuted as it is not the drawer. Therefore theproceedings as against the first petitioner are liable to bequashed and accordingly the same are quashed. "
Since no appearance has been made on the part ofthe respondent, this Court is left with no choice but todecide the matter, after hearing the learned counsel for thepetitioner and having regard to the materials placed on recordin which event, what this Court is able to assess is that thecomplainant in the above case has initiated the proceedingunder Section 138 of the Act on account of the returned chequeissued by the husband of the petitioner for the debt orliability alleged to have incurred by him by obtaining a loanof Rs.10 lakhs to which the petitioner stood as guarantor andin addition to the guarantee obtained from the petitioner hehad also obtained a cheque dated 2.6.2001 for the said sumfrom the husband of the petitioner, who obtained the loan andon account of the said cheque having been dishonoured for thereason that the petitioner stood the guarantor which insteadof approaching the civil court to enforce the guarantee, thecomplainant made the petitioner also an accused in the caseregistered in C.C.No.4099 of 2001 on the file of the VIIIMetropolitan Magistrate, George Town, Chennai for thecommission of an offence under Section 138 of the Act and onlyseeking to quash the said proceedings as against thepetitioner, she has come forward to file the above CriminalOriginal Petition on averments extracted supra. https://hcservices.ecourts.gov.in/hcservices/
Not only from the construction of the provision of lawunder Section 138 of the Act, but also from the propositionsheld by the Upper Forums, two of which were cited above, particularly the first case cited above wherein the learnedsingle Judge of the Andhra Pradesh High Court has clearly heldthat "under any pretext, no person other than one who hasissued the cheque can be made an accused for the commissionof the offence under Section 138 of the said Act, therebyquashing the proceedings against the petitioner therein andsince in the case in hand also similar facts and circumstancesprevail, the same decision could be arrived at in the presentcase also.
For the cheque issued by the husband for the loanobtained by him, just for the reason that in the borrowing ofthe loan a guarantee has been given by the wife, thepetitioner herein, which could only be enforced in a CivilForum for the liability and since the petitioner is not aparty to the issuance of the cheque, she cannot be made aparty or an accused for the prosecution of the bounced chequeunder Section 138 of the Act and hence this Court is of theconsidered view that the case registered as against thepetitioner in C.C.No.4099 of 2001 on the file of the VIIIMetropolitan Magistrate, George Town, Chennai only becomesliable to be quashed and hence the following order. In result,(i) The above Criminal O.P. succeeds andis allowed. (ii) The case registered against the petitioner in C.C.No.4099 of 2001 on thefile of the VIII MetropolitanMagistrate, George Town, Chennai ishereby quashed so far as thepetitioner is concerned; (iii)Consequently, connected Crl.M.P.No.10670 of 2004 is closed. Sd/Asst. Registrar/true copy/Sub Asst. Registrarks https://hcservices.ecourts.gov.in/hcservices/ Copy to: 1. The VIII Metropolitan Magistrate, George Town, Chennai.2.-do- Thro The Chief Metropolitan MagistrateEgmore, Chennai.+1cc to Mr.N.Mohideen Basha, Advocate Sr 2084KSJ (CO)km/24.1.CRL.O.P.No.33979 of 2004 and Crl.M.P.No.10670 of 2004
Questions this judgment answers
What did the Court decide in this case?
The Court recorded the following disposition: Therefore theproceedings as against the first petitioner are liable to bequashed and accordingly the same are quashed
Which statutory provisions did this judgment involve?
Code of Criminal Procedure, 1973 — s. 482; NegotiableInstruments Act, 1881 — s. 138.
Which court decided this case, and when?
Madras High Court, on 18 Jan 2005. The bench was V KANAGARAJ.
Precedent status how later indexed judgments have treated this case
No known negative treatment found in the Courts & Cases corpus.
This is a result about the indexed corpus, not a finding that the judgment remains good law. Coverage may be incomplete.