P SNEHALATHA Vs. VICTORY LEATHERS

JUDGEMENT

(1.) PETITIONER herein is the first accused in C. C. No. 777 of 2005 on the file of Judicial Magistrate-I, Erode, for the offence punishable under Section 138 of the Negotiable Instruments Act (in short 'act' ). Second accused is the husband of the petitioner/first accused.

(2.) AT the foremost, learned counsel for the petitioner submits that in the notice issued to the petitioner subsequent to dishonour of the cheque dated 15. 12. 2004, she has been wrongly described as the Proprietor of the Firm Techno Associates, consequently, a reply has been sent, clarifying the fact that the petitioner is a sleeping partner and that only her husband viz. , second accused, is the Managing Partner of the Firm, however, in spite of such clarification by way of reply to the notice, it has been stated in para No. 2 of the complaint that the petitioner is the Managing Partner of the Firm. It is stated that the petitioner, being the wife of the 2nd accused, never actively participated in the business of the firm; that being so, only on imaginary basis and speculation, she has been stated as the Managing Partner of the firm by the complainant. By pointing out that the cheque issued bears the signature of the second accused over the rubber stamp with the description 'authorised Signatory' of Techno Associates; he argues that, without even impleading the firm as one of the accused in the case, simply acting on the figment that the petitioner is the Managing Partner of the Firm, proceedings have been initiated for no reason but to harass her. Learned counsel, ascribing the allegation in the complaint viz. ,

(3.) PER contra, learned counsel for the complainant submits that they have received the cheque, wherein, the signature of the second accused was assigned and that the enquiry made by them revealed that the petitioner/first accused is the proprietor and the 2nd accused is the authorised signatory. According to him, in the complaint, even though the petitioner was mentioned as the Managing Partner in spite of the clarification made in the reply, inasmuch as in the course of trial, the complainant may produce relevant materials to substantiate that the petitioner was functioning at the relevant time as the Managing Partner and the 2nd accused was authorised by her to operate the bank account; at best, the points raised by the learned counsel for the petitioner can be canvassed during the course of trial and on the basis of such points, there is no need to quash the complaint and the subsequent proceedings initiated thereupon. He further submitted that as per Section 141 of the Act, every person, who is in charge of and responsible to the affairs of the business of a firm must be held liable, therefore, opportunity must be given to the respondent-complainant to produce materials to that effect.