D MALLIKA Vs. PANNEER SELVAM

JUDGEMENT

(1.) THE 3rd accused in STC.No.899 of 2006 on the file of the learned Judicial Magistrate No.1, Attur is the petitioner herein. This Criminal Original Petition has been filed for quashing the criminal proceedings initiated against the petitioner herein and two other persons based on the private complaint of the respondent herein for alleged commission of an offence punishable under Section 138 read with Section 142 of the Negotiable Instruments Act. According to the complaint, M/s. Palanimurugan Sago Factory, arrayed as the first accused in the complaint is a partnership firm of which the second accused/Dhanasekaran and Mallika, the third accused/petitioner herein are partners. Contending that the above said firm, through its partners, borrowed a sum of Rs.7,50,000/- from the respondent/complainant on 15.01.2006 for its business and to discharge its pressing debts; that on the same day, Dhanasekaran/second accused, as a partner of the first accused firm, with the consent and knowledge of the third accused/petitioner herein issued three post-dated cheques, each for a sum of Rs.2,50,000/- drawn in favour of the respondent/complainant putting the date in all the three cheques as 25.05.2006; that the said cheques drawn on the account of the first accused firm maintained with the Lakshmi Vilas Bank Limited, Attur bearing cheque Nos.0081245, 0081246 and 0081247 when presented for collection through ICICI Bank, Attur branch on 21.06.2006 were returned unpaid citing the reason "exceeds arrangement"; that on receipt of the banker's memo dated 01.07.2006, a statutory notice was issued to all the three accused demanding payment of the amount covered by the returned cheques; that even after the receipt of the notice, the accused persons, including the petitioner herein, did not make payment till the expiry of the date allowed by the Statute and that on the other hand, the accused came up with a reply notice contining false and untenable averments.

(2.) THE learned Judicial Magistrate No.1, Attur, after following necessary procedure and after recording the sworn statement of the respondent/complainant, took the complaint on file as STC.No.899/2006. After service of process on the petitioner herein, she has approached this court by way of the present petition stating that in case of an offence of dishonour of cheque, punishable under Section 138 of the Negotiable Instruments Act committed by a company (partnership firm in this case), unless necessary averments to bring the case of a particular director or partner as the case may be, within the ambit of Section 141(1) of the Negotiable Instruments Act, prosecution of such director or partner cannot be sustained.

(3.) PER contra, the learned counsel for the Respondent contended that even applying the said view expressed by the Apex Court in S.M.S. Pharmaceuticals Limited Vs. Neeta Bhalla reported in 2005(5) CTC 65, the case against the petitioner herein/third accused could not be quashed, as more than sufficient averments had been made in the complaint. In order to show the nature of averment to be held sufficient to bring the case of a director or partner within the ambit of Section 141(1) of the Negotiable Instruments Act, the learned counsel for the Respondent has relied on the judgment of the Hon'ble Supreme Court in N. Rangachari Vs. Bharat Sanchar Nigam Limited reported in 2007(3) CTC 495. The following are the observations made therein: