S. SANTHI Vs. R. CHINNA CHETTY AND ORS.

JUDGEMENT

(1.) THE first accused in C.C. No. 480 of 2002 and C.C. No. 479 of 2002 on the file of the Judicial Magistrate No. IV, Salem is the petitioner in these petitions. The respondent filed the above complaint against the petitioner and 3 others under section 138 of the N.I. Act and these petitions are filed to quash the same.

(2.) IT is submitted by the learned counsel for the petitioner that even as per the averments made in the complaint filed by the respondent, the cheque was drawn on second accused partnership firm represented by partner in favour of the first accused and the first accused endorsed the cheque in favour of the complainant/respondent and therefore, the petitioner first accused was not the drawer of the cheque and she was only an endorsee of the cheque and as per section 138 of the N.I. Act only a drawer can be called upon to pay the amount and endorsee cannot be called upon to pay the amount and liability was fastened on the drawer of the cheque and therefore, the petitioner who was only an endorsee cannot be prosecuted and relied upon the judgment of this Court in, 2010 (1) MWN (Cr.) DCC 103 in the matter of Motion Leathers rep. by its partner and another Vs. Moulana, Prop. of K.K.M. Leathers and two others and : 2013 (2) MWN (Cr.) DCC 97 (SC) in the matter of Aparna A. Shah Vs. Sheth Developers Pvt. Ltd., and another.

(3.) THE learned counsel for the first respondent/complainant submitted that under section 8 of the N.I. Act, the "holder" of a promissory note, bill of exchange or cheque means any person entitled in his own name to the possession thereof and to receive or recover the amount due thereon from the parties thereto. Under section 139 of the N.I. Act, a presumption can be drawn even in favour of the holder of a cheque and therefore, submitted even though the petitioner/first accused was not the drawer of the cheque, admittedly, she endorsed the cheque in favour of the respondent/complainant and the cheque was drawn only by the second accused/partnership firm and therefore, all of them were liable to be punished under section 138 of the N.I. Act and relied upon the judgment reported in : 2000 (1) CTC 94 in the matter of Anil Hada Vs. Indian Acrylic Ltd.