R. Padmapriya vs C. Krishnakumar

V. Periya Karuppiah, J.—This Criminal Original Petition has been filed by the Petitioner/A2 in C.C. No. 8 of 2010 pending on the file of the

District Munsif cum Judicial Magistrate Court, Bodinayakanur, Theni District, to quash the said proceedings.

Heard Mr. A. Jeyarhuthran, learned Counsel for the Petitioner and Mr. P. Senguttarasan, learned Counsel appearing for the Respondent.

The learned Counsel appearing for the Petitioner would submit in his argument that the Respondent as a complainant has filed a private

complaint on 23.12.2009 against the Petitioner and her husband for the offence u/s 120(B) read with 420 I.P.C. and 120(B) I.P.C. read with 138

of the Negotiable Instrument Act, before the District Munsif cum Judicial Magistrate, Bodinayackanur and in the said complaint, the Petitioner was

ranked as 2nd accused. He would further submit that the cheque issued by the Petitioner was not drawn and handed over by the Petitioner to the

Respondent and there was no commission of offence by the Petitioner as alleged by the Respondent and therefore, there is no question of

prosecution against the Petitioner in the complaint given by the Petitioner.

He would further submit that the Petitioner had no intention to cheat the Respondent nor any intention to conspire to commit the offence of

cheating by issuing a cheque for deceiving the Respondent. He would further submit that the Petitioner is working as a Professor in a reputed

college and the complaint has been filed clubbing the Petitioner also as 2nd Respondent in order to harass the Petitioner. He would also submit that

the complaint would not be sustainable on the face of itself and the lower Court has originally returned the complaint as not maintainable against the

2nd Respondent, but, it has accepted the representation submitted without any explanation for curing the said defect and hence the cognizance

taken by the lower Court against the Petitioner is not sustainable and therefore, the complaint filed by the Petitioner may be quashed and

accordingly, this petition may be allowed.

The learned Counsel appearing for the Respondent would submit in his argument that the Petitioner is the wife of the 1st accused and both had

borrowed a sum of Rs. 3,75,000/- and agreed to pay 12% interest per annum to the said loan and the 1st accused had executed a promissory

note in which the Petitioner and yet another person viz., Senthilkumar signed as witnesses. He would further submit that the husband of the

Petitioner viz., the 1st accused issued a cheque for a sum of Rs. 3,75,000/- in favour of the Respondent with an idea to cheat the

Respondent/complainant along with the conspiracy had with the Petitioner and accordingly, the cheque issued by the 1st accused was dishonoured

by the bank for want of funds and therefore, the Petitioner, who advised and conspired for such commission of offence is also liable for committing

the offence. He would further submit that the Respondent has advanced money only for the need of the Petitioner/2nd accused and therefore, the

complaint filed against the Petitioner, as one of the accused is maintainable and the non criminality has to be considered only at the time of

pronouncing the judgment after a full fledged trial with the help of evidence and therefore, he would request the Court to dismiss the petition.

I have given anxious thoughts to the arguments advanced on either side.

The Respondent is the complainant before the lower Court, who filed a private complaint u/s 200 Code of Criminal Procedure for the offence

u/s 120(B) read with 420 I.P.C and 120(B) I.P.C. read with 138 of the Negotiable Instrument Act against the husband of the Petitioner as A1 and

the Petitioner as A2. The statutory notice was also issued by the Petitioner for the offence u/s 138 of the Negotiable Instrument Act. It is an

admitted fact that as per the Respondent''s case, a sum of Rs. 3,75,000/- was borrowed from the Respondent/complainant and the 1st accused,

the husband of the Petitioner had executed a promissory note, to which, the Petitioner and one Senthilkumar stood as witnesses. Admittedly, the

Petitioner has not joined as co-promissor with the 1st accused in executing the promissory note. Similarly, the cheque issued for a sum of Rs.

3,75,000/- drawn on Indian Bank, Bodinayackanur Branch and was signed only by the 1st Respondent and not by the Petitioner. Therefore, the

Petitioner is not the drawer of the cheque.

The statutory notice given u/s 138 of the Negotiable Instrument Act can be proceeded only u/s 138 of the Negotiable Instrument Act. No

doubt, it is true that the complaint speaks about the offence of 120(B) read with 420 I.P.C and 120(B) I.P.C. read with 138 of the Negotiable

Instrument Act. If it is so, the Petitioner has not produced any other document to show that a complaint was given to police u/s 120(B) and 420

I.P.C for the alleged conspiracy had in between the Petitioner and A1. It was neither registered nor dropped so as to approach the said Court u/s

200 Code of Criminal Procedure It is the settled law that a person, who is not a drawer of a cheque, even though he is a co-promissor for the debt

cannot be proceeded u/s 138 of the Negotiable Instrument Act.

In this case, the Petitioner was impleaded as 2nd accused in the complaint despite she is not a co-promisor for the existing debt in between the

Respondent/complainant and the 1st accused. Therefore, there should not be any cause of action u/s 138 of the Negotiable Instrument Act and the

other offences are ancillary to the said provision u/s 138 of the Negotiable Instrument Act and there could not be any conspiracy on the part of the

Petitioner for deceiving the Respondent/complainant or committing an offence u/s 138 of the Negotiable Instrument Act. The judgment of this

Court reported in M. Seethalakshmi Vs. Suresh Bafna, Proprietor, Mansi Mercantile Co. rep. by his Power of Attorney G. Narasimhalu Chetty,

would lown as follows:

Not only from the construction of the provision of law u/s 138 of the Act, but also from the propositions held by the upper forums, two of which

were cited above, particularly the first case cited above wherein the learned Single Judge of the Andhra Pradesh High Court has clearly held that

under any pretext, no person other than one who has issued the cheque can be made an accused for the commission of the offence u/s 138 of the

said Act"", thereby quashing the proceedings against the Petitioner therein and since in the case in hand also similar facts and circumstances prevail,

the same decision could be arrived at in the present case also.

For the cheque issued by the husband for the loan obtained by him, just for the reason that in the borrowing of the loan a guarantee has been

given by the wife, the Petitioner herein, which could only be enforced in a civil forum for the liability and since the Petitioner is not a party to the

issuance of the cheque, she cannot be made a party or an accused for the prosecution of the bounced cheque u/s 138 of the Act and hence this

Court is of the considered view that the case registered as against the Petitioner in C.C. No. 4099 of 2001 on the file of the VIII Metropolitan

Magistrate, George Town, Chennai only becomes liable to be quashed.

Similarly, it has been laid down by the High Court of Andra Pradesh reported in 1998 (3) Crimes 543 in between (G. Surya Prabhavathi v.

Nekkanti Subrahmanyeswara Rao and Anr.), which would run as follows:

It is settled principle of law that penal provisions should be construed strictly and the emphasis is on the words ""such person"". It is manifest from

the expression of the words used in Section 138 of the Act ""Such person shall be deemed to have committed the offence"". relate to the person

who has drawn the cheque in favour of the payee and if the said cheque is returned unpaid on account of the conditions mentioned u/s 138 of the

Act, such person alone is liable but not other except the contingencies mentioned u/s 141 of the Act.

Applying the said dictum laid down by the Hon''ble Apex Court, the Petitioner, who was not a drawer of the cheque, which bounced cannot

be proceeded against the Petitioner and he cannot be made as an accused in the said proceedings. But, the lower Court has taken cognizance of

the offence u/s 120(B) read with 420 I.P.C and 120(B) I.P.C. read with 138 of the Negotiable Instrument Act is not sustainable and therefore, the

proceedings pending in C.C. No. 8 of 2010 on the file of the District Munsif cum Judicial Magistrate, Bodinayackanur, is liable to be quashed as

against the Petitioner. The lower Court is entitled to proceed against the 1st accused alone that too only u/s 138 of the Negotiable Instrument Act.

With the aforesaid observation, this criminal original petition is ordered and the proceedings pending in C.C. No. 8 of 2010 on the file of the

District Munsif cum Judicial Magistrate, Bodinayackanur, is hereby quashed as against the Petitioner and the lower Court is also directed to

proceed against the 1st accused only u/s 138 of the Negotiable Instrument Act. Consequently, connected miscellaneous petitions are closed.