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2014 DIGILAW 1669 (MAD)

Polyfine Industries v. P. Gopal

2014-06-24

T.S.SIVAGNANAM

body2014
Judgment 1. The petitioners herein are the accused in S.T.R.No.5141 of 2012, on the file of Judicial Magistrate No.II, Puducherry, and they filed this Petition under Section 482 of Cr.P.C., to quash the above proceedings, pertaining to the complaint, lodged by the respondent/complainant, seeking to prosecute the petitioners for the alleged commission of an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as ' N.I. Act'). 2. The learned counsel appearing for the petitioners/accused has raised three contentions to quash the proceedings. Firstly, by contending that the cheque, alleged to have given in favour of the respondent/complainant for a sum of Rs.6,60,000/-, is more than the debt, said to be due, therefore, it is submitted that, the instrument in question cannot be treated as "Negotiable Instrument" so as to attract the proceedings under Section 138 of the N.I. Act, 1881, since on the date of issue of the cheque, the legally enforceable debt or liability, according to the complainant himself, was only Rs.6,55,000/-, whereas, the cheque issued was, for Rs.6,60,000/-, which is more than the liability. In this regard, reliance was placed on the judgment in (Angu Parameshwari Textiles Pvt Ltd., Vs. Sri Rajam and Co.). Secondly, it is pointed out that in the legal notice issued by the respondent/complainant, the cheque number has been wrongly mentioned. Thirdly, it is contended that one Deepa is also shown as accused, whereas, she is not the signatory of the cheque, though she is one of the partners of the first accused-Firm. That apart, there is no specific averment in the complaint as against the said Deepa in any other manner. Learned counsel seeks for quashing the complaint on the abovesaid three grounds. 3. That apart, there is no specific averment in the complaint as against the said Deepa in any other manner. Learned counsel seeks for quashing the complaint on the abovesaid three grounds. 3. The learned counsel appearing for the respondent submitted that the contentions raised by the petitioner regarding the cheque amount issued and the liability are disputed questions of fact, which are to be decided by the Court below only at the time of trial and the same cannot be gone into now, in the quash proceedings under Section 482 of Cr.P.C. Sofar as the second contention relating to the wrong mentioning of the cheque number in the legal notice is concerned, it is submitted that that original cheque has been filed before the Court below, and the Court below, on being satisfied with the correct proof furnished to it, has taken the complaint on file. Therefore, the second contention raised by the petitioner also, does not merit consideration. As regards the third contention, viz., the contention that Deepa cannot be arrayed as accused, it is submitted that, she being one of the partners of the first accused-Firm, was rightly impleaded as an accused in the complaint. 4. Heard learned counsel appearing for both the parties and perused the materials available on record. 5. As regards the first point, it is seen that the complaint has been made by making certain averments in Paragraph No.2 to the effect that the accused has borrowed a sum of Rs.5,00,000/-and agreed to re-pay the same with interest at the rate of 12% per annum from the date of borrowal till the date of discharge and that, as a partial discharge thereof, the accused have issued a cheque in favour of the respondent/complainant, for a sum of Rs.6,60,000/-. Admittedly, when the instrument was presented by the respondent/complainant for encashment, it was dishonoured. The learned counsel for the petitioners, by referring to a calculation sheet, would state that from the date of borrowal, if the interest is calculated at the rate of 12% for 31 monthly instalments, the amount will be only Rs.6,55,000/- and it cannot be Rs.6,60,000/-Therefore, the instrument, in question, is not towards the discharge of the debt. The learned counsel for the petitioners, by referring to a calculation sheet, would state that from the date of borrowal, if the interest is calculated at the rate of 12% for 31 monthly instalments, the amount will be only Rs.6,55,000/- and it cannot be Rs.6,60,000/-Therefore, the instrument, in question, is not towards the discharge of the debt. As rightly pointed out by the learned counsel for the respondent, the issue raised regarding the cheque amount is a disputed question of fact, and it has to be gone into only by the Court below and cannot be agitated in a summary manner, based on the facts and calculation memo in a Petition filed under Section 482 of Cr.P.C. Therefore, the complaint cannot be quashed on the first ground raised by the learned counsel for the petitioner. 6. As regards the second point that there is a mistake in mentioning the cheque number in the legal notice issued to the petitioners, it is pertinent to note that, in the legal notice issued, of course, there are some mistakes in mentioning the cheque number and amount, nevertheless, the original cheque has been produced before the Court below, which on being satisfied with the correct proof furnished to it, has taken the complaint on file. Therefore, on the second ground also, the complaint cannot be quashed. 7. Insofar as the third and final point is concerned, it is submitted that Deepa has been unnecessarily roped in as one of the accused in this case. If the averments made in the complaint are perused, it could be seen that there is no specific averment against Deepa, stating that she signed the cheque, or that she is the signatory of the cheque and there is no contention, whatsoever, regarding her involvement in the case. The first accused-Firm has been represented by its Partners i) Mrs. R. Sathiya, ii) Mrs. V. Ekambari and iii) Mrs. Deepa. The second and third accused, viz., R.Sathya and V.Ekambari are the authorized signatories of the first accused-Firm and they are the drawers of the cheque in question. The photostat copy of the cheque, shown at page No.7 of the typed set of papers shows that two authorized signatories have signed the cheque on behalf of the first accused-Firm and their names appear to be Mrs. R. Sathiya and V.Ekambari, who have been arrayed as second and third accused respectively. The photostat copy of the cheque, shown at page No.7 of the typed set of papers shows that two authorized signatories have signed the cheque on behalf of the first accused-Firm and their names appear to be Mrs. R. Sathiya and V.Ekambari, who have been arrayed as second and third accused respectively. In such circumstances, the complaint made against Deepa cannot be sustained. Furthermore, Deepa has not been included as an accused in her individual capacity, as in the case of second and third accused. Hence, the complaint against Deepa itself is false, as she is only representing the first accused-firm. Therefore, the complaint made against Deepa is quashed on the abovesaid grounds. It is made clear that complaint against Deepa, who is one of the partners of the first accused-Firm alone is quashed and the complaint/case should be proceeded against the first accused-Firm, represented by second and third accused, who are the authorized signatories. It is also made clear that the contentions raised herein regarding whether the cheque was issued for legally enforceable debt or not, can be raised before the Court below. With the above observations, this Criminal Original Petition is partly allowed. Consequently, connected M.P. is closed.