Research › Browse › Judgment

Madras High Court · body

1994 DIGILAW 148 (MAD)

INDIRA v. KARTHIKEYAN

1994-02-02

PRATAP SINGH

body1994
Judgment : PRATAP SINGH, J. ( 1 ) - The third accused in C. C. 158 and 159 of 1993 and C. C. 304 to 309 of 1992 on the file of the Judicial Magistrate No. II, Ponneri, has filed these petitions under Section 482, Cr. P. C. praying to call for the records in the above cases and quash the same. ( 2 ) SHORT facts are : In C. C. 304/92, the complainant in that case has filed the complaint against three accused for offence under Section 138, Negotiable Instruments act (which I shall hereafter refer to as the Act ). The allegations in it are briefly as follows: the first accused is an unregistered partnership firm. The second accused is the managing Partner. The third accused is a partner. Accused 2 and 3 are looking after the day-to-day administration of the first accused and are doing business. The first accused is having account in the Indian Bank. It is operated by accused 2 and 3 jointly and separately. On 6. 5. 1992 and 12. 5. 1992, the second accused had purchased rice from the complainant to a value of Rs. 66,365/-and promised to pay the amount within a week. After making part payments, the balance was not paid, despite repeated demands to accused 2 and 3, They have been evading. Finally on 20. 9. 1992, A. 2 gave a cheque on behalf of A. 1 for Rs. 61,000/ -. A. 3 knew it. When presented for encashment, the cheque was returned on the ground of insufficient funds. A. 2 and a. 3 had issued cheques in the name of first accused, knowing fully well that there was no sufficient funds in the account of the firm in the Bank. The complainant sent statutory notice on 5. 10. 1992. The accused have not paid the cheque amount within 15 days of receipt of that notice. On the other hand the first accused had sent a reply. Hence, the complaint. ( 3 ) OUT of the three accused, the third accused had filed the petition in Cri. O. P. 7753/93. The respondent in other cases have filed complaints against the three accused, out of whom the petitioner is the third accused for offence under Section 138 of the Act on similar allegations. ( 4 ) MR. T. L. Rammohan, the learned Counsel appearing for Mr. O. P. 7753/93. The respondent in other cases have filed complaints against the three accused, out of whom the petitioner is the third accused for offence under Section 138 of the Act on similar allegations. ( 4 ) MR. T. L. Rammohan, the learned Counsel appearing for Mr. K. N. Thambi, the learned Counsel appearing for the petitioner, would submit that the petitioner is a Teacher, living at Vadapalani; whereas the business premises of the first accused is at Songundram and that would show that she was not looking after the affairs of the firm that the second accused has been described as the Managing Partner and while so, there would be no occasion for the third accused to play any role in the conduct of the business and the above would show that she is not concerned with the conduct of the business on date on which the cheques were issued. He would further submit that the proceedings are clear abuse of process of law. He would submit that the petitioner was not the drawer of the cheque and in view of the above, the proceedings as against her are liable to be quashed, in the above cases. 1 have heard Mr. M. Karpagarinayagam, the learned Counsel for the respondent, on the above aspects. ( 5 ) I have carefully considered the submissions made by the learned Counsels. To consider the above submissions, relevant, allegations made in the complaint need be stated. In para 2 of the complaint, it is alleged that accused 2 and 3 are looking after the day-to-day administration of the first accused-firm and are doing business. In para 3 of the complaint, it is alleged that A-2 and A-3 are jointly and separately operating the account of the first accused with the Indian Bank. In para 5 of the complaint, it is alleged that the amount due under the cheque has been repeatedly demanded from accused 2 and 3 and they had been evading payment giving excuses. In para 6 of the complaint, it is alleged that finally A-2 issued a cheque on behalf of A-1 and A-3 knew it fully well. In para 7 of the complaint it is alleged that A-2 and A-3 deliberately issued the cheque in the name of A-1 knowing fully well that there are no sufficient funds in the account of the first accused with the Bank. In para 7 of the complaint it is alleged that A-2 and A-3 deliberately issued the cheque in the name of A-1 knowing fully well that there are no sufficient funds in the account of the first accused with the Bank. ( 6 ) AS per Section 141 of the Act, if the person committing an offence under Section 138 is a company, every person who, at the time the offence was committed, was incharge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence. As per the explanation company includes a "firm". As per Clause (b) to explanation director in relation to a firm, means a partner in the firm. In the instant case, allegations are there to the effect that the third accused was also looking after the day-today administration of the first accused-firm and has been doing business. Allegations referable to the third accused, would bring her within the ambit of Section 141 of the act. When allegations are available in the complaint to make out the offence against accused No. 3, these complaints cannot be quashed at the threshold. As to whether she was really taking part in the conduct of the business, as has been alleged in the complaint or she was not taking part in the affairs of the firm, as has been put forth by the learned Counsel for the petitioner, can be gone into only at the time of trial, when evidence is let in this regards, that stage has yet to come. Mr. Rammohan, would rely upon objects and reasons of amendment particularly Clause (xi), which reads as follows : "to enhance the acceptability of cheques in settlement of liabilities by making the drawer responsible for penalties in case of bouncing of cheques due to insufficiency of funds in the accounts or for the reason that it exceeds the arrangements made by the drawer, with adequate safeguards to prevent harassment of honest drawers". and would submit that these proceedings, if allowed to continue, would amount to and would of the petitioner. When the requirements of the Act are satisfied and are set out in the complaint, it cannot be said that it would amount to harassment. So, I cannot say that these proceedings would amount to abuse of process of Court. and would submit that these proceedings, if allowed to continue, would amount to and would of the petitioner. When the requirements of the Act are satisfied and are set out in the complaint, it cannot be said that it would amount to harassment. So, I cannot say that these proceedings would amount to abuse of process of Court. ( 7 ) IN the result, these petitions fail and shall stand dismissed. Petitions dismissed.