Parthasarathy vs Subramaniam

P.R. Shivakumar, J.—Heard both sides and perused the materials available on record.

Accused No. 2 in C.C. No. 177 of 2005 on the file of the learned Judicial Magistrate No. II, Pollachi, is the petitioner herein. He has sought for

an order quashing the said criminal proceedings instituted on a private complaint preferred by the Respondent herein against the petitioner herein and one Neminathan (accused No. 1), describing both of them to be proprietors of M/s. Lakshmipriya Thengai Powder, for an alleged offence punishable u/s 138 read with 142 of the Negotiable Instruments Act. The cheque in question was issued in the name of M/s. Lakshmipriya Thengai

Powder signed by the said Neminathan, as its proprietor.

It is the contention of the learned Counsel for the Petitioner that though the petitioner herein has been arrayed as second accused in the

complaint preferred by the respondent herein, necessary averments to bring him within the ambit of Section 141 of the Negotiable Instruments Act to make him responsible for the offence punishable u/s 138 of the Negotiable Instruments Act committed by the business concern, have not been made in the complaint and that in the absence of such averments, the criminal proceedings initiated against the petitioner herein for such offence cannot be sustained. It is also not the case of the respondent/complainant that the petitioner is a signatory to the cheque issued in the name of the business concern. So far as an offence u/s 138 of the Negotiable Instruments Act committed by a company is concerned, a partner of a partnership firm and a director of a company are treated on par. According to the learned Counsel for the petitioner, a co-proprietor is not to be treated on par with a director or a partner and a proprietary concern is not deemed to be a company.

It is the further contention of the learned Counsel for the petitioner that even assuming that a co-proprietor of a proprietary concern can be

equated to a partner of a firm or a director of a company, there must be necessary averments to bring the case of such person within the ambit of

Section 141 of the Negotiable Instruments Act for prosecuting him for an offence punishable u/s 138. According to his contention, there is total absence of averment to the said effect. This Court, after going through the records, is satisfied with the correctness of the said submission made by the learned Counsel for the Petitioner. Therefore this Court comes to the conclusion that the petitioner has made out a case for quashing the criminal proceedings initiated on the basis of the private complaint preferred by the respondent herein against him.

Yet another vital point has also been raised by the petitioner herein, questioning the proprietary of the order of the learned Judicial Magistrate

taking the complaint on file and registering it as a calendar case. The learned Counsel for the petitioner has submitted that the complaint should not have been taken on file without the production of the original dishonoured cheque. In support of his contention the learned Counsel relied on the judgement of this Court in R. Sarathkumar v. Inspector of Police, C9 Police Station, Neelankarai, Chennai reported in 2004 MLJ (Cri.) 421. The following guidelines have been issued by this Court in the above said judgement relied on by the learned Counsel for the petitioner.

(1) At the time of taking the complaint on file, the original cheques shall be produced before the Magistrate.

(2) The Magistrate shall after affixing the seal of the Court with the date and entering the other particulars such as Registration number, make an

endorsement to that effect on the back of the original cheque.

(3) Thereafter, the original cheque may be returned to the complainant; a photocopy of the dishonoured cheque may be attached with the

complaint.

(4) The original cheque shall be marked while adducing the evidence. (photo-copies are not admissible in evidence when the originals are

available).

(5) Summons to the respondents shall be sent along with the copy of the complaint.

(6) After the service of summons, if the respondent does not appear, only bailable warrant shall be issued since the offence is bailable.

(7) While issuing such warrant reasons for issuing warrant of arrest shall be recorded.

(8) If, even after the execution of the bailable warrant, the respondent does not appear, the securities furnished shall be forfeited, and a non-

bailable warrant may also be issued.

As per the said guidelines, in case the original cheque is available with the complainant, the same must be produced before the Judicial Magistrate at the time of taking the complaint on file. The following are also the observations made in the above said case namely R. Sarathkumar v. Inspector of Police, C9 Police Station, Neelankarai, Chennai

While filing of the complaint under Section138 of the Negotiable Instruments Act, the original dishonoured cheques (on which the complaint is

based) shall be produced; the Magistrate shall make an endorsement on the back of such original cheques, after affixing the Court seal and also entering the complaint-registration number. Only after that, a photocopy of the cheque may be received; the original cheque maybe returned to the complainant to be produced while examination of witnesses. The photo-copy of the dishonoured cheque cannot be marked as an exhibit in the

case, except where secondary evidence is permissible as per the provision of the Evidence Act;

A consideration of the above said observation will show that the general rule is that the original cheque should be produced at the time of taking

the complaint on file with the exception that wherever secondary evidence is permissible production of the original cheque cannot be insisted upon.

But necessary pleadings should have been made to make out a case for the production of secondary evidence in proof of the dishonoured cheque.

In this case, the learned Counsel for the petitioner has rightly contended that necessary averments are lacking in the complaint for accepting secondary evidence in proof of the dishonoured cheque. Though the said contention raised by the learned Counsel for the petitioner seems to be

correct, this Court is of the view that taking the complaint on file without the production of the original dishonoured cheque is only an irregularity which can be cured later on by the production of the original and that hence the same shall not be sole ground on which the criminal proceedings instituted on private complaint itself could be quashed. On the other hand, as pointed out in paragraph 4, the respondent/complainant has not made averments sufficient for prosecuting the petitioner herein as a co-proprietor of the proprietary concern so as to bring the case against the petitioner within the ambit of Section 141 of the Negotiable

Instruments Act.

Accordingly, the Criminal Original Petition is allowed and the prosecution launched on the private complaint of the respondent/complainant

herein in C.C. No. 177 of 2005 on the file of the learned Judicial Magistrate, Pollachi is quashed in so far as the petitioner is concerned.

Consequently, the connected petition is closed.