Udayakumar and Vasantha Kumari vs K. Devan

C.S. Karnan, J.—The petitioner has filed the above Criminal Original Petition to call for the records in C.C. No. 266 of 2006 on the file of

the Court of Judicial Magistrate No. I, Dharmapuri and quash the same.

The respondent/complainant''s case is that the respondent is a sub-broker and adviser in the share market at Dharmapuri Town. The petitioner

purchased shares through the respondent from Motilal Oswal Security Limited, Mumbai. The value of the shares purchased from Motilal Oswal

Security Ltd., Mumbai was for a sum of Rs. 1,77,400/-. As the said amount was not paid by the petitioner to Motilal Oswal Security Limited,

Mumbai, the broker was constrained to pay the said amount to M/s. Motilal Oswal Security Limited. After that, the petitioners paid the said

amount to the respondent by giving him five post dated cheques. The said cheques were presented by the complainant in his account. All the

cheques were returned with the endorsement as ''insufficient funds''. Thereafter, the complainant issued legal notice to the accused persons. Even

after receipt of this notice, the accused did not pay the cheque amounts. Hence, the complainant approached the learned Judicial Magistrate No. I,

Dharmapuri, by way of complaint filed under Sections 138 and 147 of Negotiable Instruments Act and 420 of IPC. Along with the said complaint,

the complainant filed 13 documents and mentioned two witnesses. The learned Magistrate has taken the case on his file as C.C. No. 266 of 2006,

and issued summons to the petitioners/accused herein.

The petitioners have now challenged the complaint by way of the above quash petition stating that the complaint in C.C. No. 266 of 2006 is not

maintainable under Sections 219(1), 220(1) of Cr.P.C as five cheques alleged to have been signed by the first petitioner bearing different dates,

presented on different dates for collection were dishonoured and the cause of action for presenting the complaint cannot be termed to form the

same transaction.

The petitioners are having joint account; the cheques in question were signed by the first petitioner as a drawer and as such the second petitioner

cannot come within the ambit of definition of ""drawer"" of the cheque. Therefore, the complaint against the second petitioner is not maintainable.

Further, the amount is due and payable to Motilal Oswal Security Limited, and the said company has not authorised the respondent to file the

complaint. Further, there is no proof that the respondent is authorised by the said Motilal Oswal Security Limited. The cheques were issued as

security but the respondent has misused the cheque. For the above reasons, the petitioners seek quash of the proceedings.

The contentions of both the sides were perused and the arguments of both the sides were heard. The Court is of the view that the case has been

filed under Negotiable Instruments Act on the basis of dishonoured cheques, which were issued by the petitioners. Therefore, the said case has got

to be tried. Accordingly, the Court is not warranted to interfere with the proceedings in C.C. No. 266 of 2006 on the filed of the learned Judicial

Magistrate No. I, Dharmapuri.

Hence, the Criminal Original Petition is dismissed. Consequently, connected Miscellaneous Petition is closed.