H.ANSAR ALI Vs. M.S.RAJA

JUDGEMENT

(1.) This criminal original petition has been filed seeking to quash the proceedings in S.T.C.No. 498 of 2021, on the file of the learned Judicial Magistrate No.I, Kumbakonam.

(2.) The facts of the case are that the petitioner is the accused person in S.T.C.No.498 of 2021, on the file of the learned Judicial Magistrate No.I, Kumbakonam. The respondent is the complainant. The petitioner is prosecuted for having committed an offence punishable under Sec. 138 of Negotiable Instruments Act, 1881. The complainant firm is represented by its power agent/S.Kannan. In the complaint, it is stated that the complainant is a registered partnership firm functioning in the name and style 'M/s.Raja Holding'. The petitioner accused borrowed a loan of Rs.20,00,000.00 from the complainant. The complainant paid that amount through it's account in the Indian Overseas Bank, Town Branch Kumbakonam, on 30/9/2015, by cheque bearing No.440332. The petitioner had executed a pronote for the loan amount and agreed to repay the same with 30% of interest per annum. Till 15/7/2018, the accused person repaid a sum of Rs.21,25,000.00 and he has to pay the balance amount i.e., Rs.9,46,290.00. Thereafter, he had paid only a sum of Rs.2,00,000.00, on 11/11/2019 for interest. For the balance amount i.e., Rs.15,58,999.00, the accused person gave a cheque drawn on the Kumbakonam Branch of the State Bank of India, dtd. 30/6/2021 with the cheque No.140660. The complainant put it for collection on 30/6/2021 at the Kumbakonam Branch of State Bank of India, which was returned as 'insufficient funds'. Hence a demand notice was issued within a period of fifteen days and the accused person also received the same and sent a reply notice through his Advocate with false allegation. Hence the private complaint has been filed against the petitioner, which is under challenge.

(3.) The learned Counsel appearing for the petitioner submitted that the criminal complaint against the petitioner is not maintainable and the same is liable to be quashed on the ground that the loan amount was not paid to the petitioner in his individual capacity. The complaint has been filed through the complainant firm's power of attorney. He is not competent to speak about the transaction between the petitioner and the complainant firm. The petitioner gave the cheque for security purpose and the same was misused by the complainant. The petitioner is one of the partner to AMD Housing Developer. Being a partnership firm, without making the firm as an accused, this complaint is unsustainable. To support his argument, he relied upon the following judgments: