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2009 DIGILAW 3427 (MAD)

Rathimala & Others v. S. P. Srinivasan & Another

2009-08-28

C.S.KARNAN

body2009
Judgment :- The petitioners/accused 3 to 5 have filed the above Criminal O.P.No.24064 of 2007 to call for the records of the complaint in C.C.No.348 of 2007 pending on the file of the Judicial Magistrate No.I, Erode, and quash the same. 2. The respondent/complainant filed the complaint in C.C.No.348 of 2007 before the Judicial Magistrate I, Erode against 5 accused persons on an alleged offence under Section 138 r/w. 142 of Negotiable Instrument Act. The ingredients of the complaint is that the 1st accused, namely Bharat Refiners and Oil mills is a partnership concern, accused 2 to 6 are the partners of the said 1st accused concern. The accused 2 to 6 are in charge and responsible for the day today affairs of the said accused partnership concern. On 08.04.2007, the accused have borrowed a sum of Rs.5 Lakhs from the complainant and promised to repay the same. On 07.05.2007, the accused issued a post dated cheque for Rs.5 Lakhs, the cheque bearing No.7948763 dated 07.05.2007, drawn on the Dhanalakshmi Bank Ltd., Erode Branch. The complainant presented the cheque for collection through his bankers, Indian Bank Ltd., Periyasemur Branch, Erode and the same was returned on 08.05.2007 with the endorsement as "funds insufficient". 3. Thereafter, the complainant has issued a registered Lawyer notice to the accused to call upon him to pay the dishonoured cheque amount of Rs.5 Lakhs. The said notice was returned on 24.05.2007 as "not claimed". Hence, the accused have committed an offence under Section 138 r/w Section 142 of the Negotiable Instrument Act. Supporting his case, the complainant has furnished five documents and 3 witnesses are mentioned. 4. The petitioners/accused 3,4 and 5 have filed the quash petition stating that the 1st petitioner is the wife of Kamalanathan, who is a director of the partnership firm and she is only a house wife. The 2nd and 3rd petitioners are sons of the 1st petitioner and the 2nd petitioner is doing business and residing separately at Dindugal; the 3rd petitioner is an engineering student and studying at an engineering college. 5. The petitioners further submit that they are not signatories to the cheque issued by V.Kamalanathan, who is the active partner of the partnership firm. Further, the cheque was only issued as a security. 5. The petitioners further submit that they are not signatories to the cheque issued by V.Kamalanathan, who is the active partner of the partnership firm. Further, the cheque was only issued as a security. The mere vague allegation that the petitioners were in charge and responsible for the day today affairs of the partnership firm will not suffice to satisfy requirement of Section 141 of the Negotiable Instruments Act. Further, the petitioners have alleged that they are not vicariously liable and are only sleeping partners. Hence the petitioners have filed this quash petition. 6. The learned counsel for the petitioners have filed 5 citations, in support of their case, in 1. (2007) 3 Supreme Court cases 693, Sarojkumar poddar, .Vs. State (NCT of Delhi) 2. 2007 (2) Crimes 352 (SC) (N.K.Wahi .Vs. Shekar singh and others) 3. 2007 (4) CTC 318 (Capt. D.Karunkar, Director, M/s.Manito Electronics (P) Ltd. .Vs. Tamil Nadu News Print and Papers Ltd.) 4. (2004) 7 Supreme Court cases 15, (Monaben Ketar Bhai Shah and another .Vs. State of Gujarat and others) 5. 2006 Crl.L.J.No.4602 Supreme Court (Sabitha Ramamurthy & another .Vs. R.B.S. Channabhasavaradhya) 7. The learned counsel for the respondent has produced a citation of a judgment, in support of his case in 2007 (3) CTC 495, Supreme Court of India, (N.Rangachari .Vs. Bharat Sanchar Nigam Ltd). 8. This Court, after well considering the ingredients of the complaint and contention of the petitioner and after hearing arguments advanced by the learned counsel for petitioner and learned counsel for the respondent, the Court is of the view that the Learned Magistrate, after applying his mind has taken the case on his file. Further, the case has been filed on the basis of dishonoured cheque. For the issuance of cheque, there is no dispute between the parties. Even though the petitioners are sleeping partners, they are liable to cooperate in the said case. The petitioners citations are not applicable in the present case. So, their presence is necessary in this case at the time of trial. Therefore, the Criminal Original Petition has got to be dismissed. Accordingly, it is dismissed. Consequently, connected Miscellaneous Petition is closed.