Madras High Court
M/S.Jk Fuels vs C.Deepa on 18 September, 2020
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
CRL.O.P.No.3534 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 18.09.2020
CORAM:
THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN
CRL.O.P.No.3534 of 2020
and Crl.M.P.No.2075 & 2076 of 2020
M/s.JK Fuels,
Represented by Proprietor,
V.Priyadharshini,
W/o.T.S.Vijayakumar,
No.49, Kovalan Street,
Teachers Colony,
Erode-11 ... Petitioner
Vs.
C.Deepa
W/o.Balasubramani,
Door No.31/33,
Kongu Nagar, 2nd Street,
Municipal Colony,
Erode. ... Respondent
PRAYER: Criminal Original Petition filed under Section 482 of Cr.P.C.
praying to call for the records in S.T.C.No.414 of 2019 pending on the file of
the Fast Tract Court (Magistrate Level) No.II, Erode, and quash the same.
For Petitioner : Mr.Shase
For Mr.M.Guruprasad
For Respondent : Mr.T.Muruganatham
For Mr.C.S.Saravanan
http://www.judis.nic.in
Page 1 of 12
CRL.O.P.No.3534 of 2020
ORDER
This petition has been filed to quash the proceedings in S.T.C.No.414 of 2019 on the file of the Fast Tract Court (Magistrate Level) No.II, Erode, thereby taken cognizance for the offences punishable under Sections 138 r/w 142 of Negotiable Instruments Act, 1881 (hereinafter referred to as NI Act) as against the petitioner.
2. The learned counsel appearing for the petitioner would submit that the alleged cheques have been issued as security to one Geetha. The petitioner never issued any cheque to the respondent herein to discharge any legally enforceable debt. Further he submitted that the petitioner was allotted retail outlet dealership from the Hindustan Petroleum Corporation. Thereafter, the petitioner started retail outlet shop in the name and style of J.K. Fuels and the petitioner is the sole proprietor. While being so, the petitioner accepted the offer made by the respondent to induct her as one of the partner in the said business. The respondent had put her share to the tune of Rs.18,20,000/- on 16.04.2015. In this regard a memorandum of understanding entered between the petitioner and the respondent on 16.04.2015. http://www.judis.nic.in Page 2 of 12 CRL.O.P.No.3534 of 2020 2.1. She further submitted that thereafter, the petitioner would not able to run business and also settle the amount with the respondent herein. Therefore, on 24.10.2016, the petitioner entered into a exchange deed with one Geetha, thereby leased out the entire business to the said Geetha and received a sum of Rs.10 lakhs as advance. During the said transaction, the alleged cheques in the present case have been issued as security to the said Geetha on 24.10.2016. It is categorical mentioned in the exchange agreement dated 24.10.2016. Therefore, the alleged cheques were never issued by the petitioner to the respondent herein. Thereafter, the said Geetha handed over the cheques to the respondent and foisted the false complaint as if the cheques were issued by the petitioner to discharge of her liability. Therefore, she sought for quashment of the entire proceeding.
3. Per contra, the learned counsel appearing for the respondent would submit that on 16.04.2015, the respondent entered into a memorandum of understanding with the petitioner herein to induct her as one of the partner for which, she paid a sum of Rs.18,20000/- on 16.04.2015 and a sum of Rs.17,00,000/- has been paid subsequently. Therefore, the respondent totally paid a sum of Rs.35,20,000/- to the petitioner herein to run the business and to http://www.judis.nic.in Page 3 of 12 CRL.O.P.No.3534 of 2020 induct her as partner. Thereafter the petitioner did not take any steps to induct the respondent as partner in the business which was run by the petitioner. Thereafter, the petitioner issued two cheques for a sum of Rs.20,00,000/- each towards return of the said amount received by her. Both the cheques were presented for collection and the same were returned for the reason account closed. Immediately, the respondent caused statutory notice and the same was returned as unclaimed. Therefore, the petitioner is liable to be punished for the offence under Section 138 of NI Act. That apart, the points raised by the learned counsel appearing for the petitioner cannot be considered here that too under Section 482 of Cr.P.C., since all are disputed question of fact. Therefore, he prayed for dismissal of the quash petition.
4. Heard Ms.R.Shase, learned counsel appearing for the petitioner and Mr.T.Muruganantham, learned counsel appearing for the respondent.
5. The respondent is the complainant and she lodged complaint as against the petitioner for the offence under Section 138 r/w142 of NI Act, alleging that the petitioner herein has a retail outlet dealership from Hindustan Petroleum Corporation and she is running business in the name and style of http://www.judis.nic.in Page 4 of 12 CRL.O.P.No.3534 of 2020 J.K.Fuels. While being so, the petitioner approached the respondent and offered her to be inducted as one of the partner and also received a sum of Rs.35,20,000/-. Thereafter the petitioner failed to induct her as partner in the retail shop. Towards repayment of the said amount, the petitioner issued two cheques for a sum of Rs.20,00,000/- each. Both the cheques were presented for collection and the same were returned dishonoured for the reason account closed. Hence the complaint.
6. It is seen that after the memorandum of understanding entered between the petitioner and the respondent herein dated 16.04.2015, again the petitioner entered into an exchange deed with one Geetha on 24.10.2016, since the retail outlet shop stand in the name of the petitioner and the dealership issued in the name of the petitioner cannot be changed to the respondent herein. While entering into the said exchange deed between the petitioner and the said Geetha, the alleged cheques were issued as security purpose. Therefore, there is no legally enforceable debts by the petitioner to the respondent herein. It is evident from the exchange deed dated 24.10.2016 and the relevant portion is extracted hereunder :-
"19) Indian overseas Bank, R{uk;gl;o fpisapy; ek;kpy; 1 yf;fkpl;ltUf;Fs;s 2233 http://www.judis.nic.in Page 5 of 12 CRL.O.P.No.3534 of 2020 vz;Qqs;s t';fp fzf;fpypUe;J U/2.00.000-?
f;fhd 431912 vz;Qqs;s fhnrhiya[k;.
U/2.00.000-?f;fhd 431913 vz;Qqs;s
fhnrhiya[k;. U/1.00.000-?f;fhd 431914
vz;Qqs;s fhnrhiya[k;. U/1.00.000-?f;fhd
431915 vz;Qqs;s fhnrhiya[k;. U/1.30.000-?
f;fhf 431916 vz;Qqs;s fhnrhiya[k;
ek;kpy; 1 yf;fkpl;ltuhy; njjp
Fwpg;gplg;glhky; ek;kpy; 2 yf;fkpl;lth; trk;
tH';fg;gl;Ls;sJ/ nkYk; nkw;go t';fp
fzf;fpypUe;J 431908. 431909 vz;Qqs;s
fhnrhiyfs; bjhif Fwpg;gplg;glhky;
ek;kpy; 1 yf;fkpl;ltuhy; ifbaGj;jplg;gl;L ghJfhg;gpd; bghUl;L ek;kpy; 2 yf;fkpl;lth;
trk; tH';fg;gl;Ls;sJ/@
7. On 24.10.2016, the petitioner issued the alleged cheques bearing Nos.431908 and 431909 as security purpose to the said Geetha. Admittedly after entering into the memorandum of understanding between the petitioner and the respondent the business was not properly run as such, the petitioner again entered into an exchange deed with one Geetha. While entering into the exchange deed between the petitioner and the said Geetha, the alleged cheques in the present complaint had been given as security. Therefore, there is no legally debt by the petitioner towards the respondent herein. It is relevant to http://www.judis.nic.in Page 6 of 12 CRL.O.P.No.3534 of 2020 extract the provisions under Section 138 of NI Act, as follows :-
"138. Dishonour of cheque for insufficiency, etc., of funds in the account. —Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for 19 [a term which may be extended to two years], or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless—
(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(b) the payee or the holder in due course of the http://www.judis.nic.in Page 7 of 12 CRL.O.P.No.3534 of 2020 cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, 20 [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
Explanation.— For the purposes of this section, “debt or other liability” means a legally enforceable debt or other liability."
8. Further in order to constitute an offence under Section 138 of the NI Act, the Hon'ble Supreme Court of India, in the judgment reported in (2009) 14 SCC 683 in the case of Jugesh Sehgal Vs. Shamsher Sign Gogi, has noted the following ingredients which are required to be fulfilled :-
"9. It is manifest that to constitute an offence under Section 138 of the Act, the following ingredients are required to be fulfilled:
(i) a person must have drawn a cheque on an account maintained by him in a bank for http://www.judis.nic.in Page 8 of 12 CRL.O.P.No.3534 of 2020 payment of a certain amount of money to another person from out of that account;
(ii) The cheque should have been issued for the discharge, in whole or in part, of any debt or other liability;
(iii) that cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier;
(iv) that cheque is returned by the bank unpaid, either because of the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank;
(v) the payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 15 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid;
(vi) the drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice;
http://www.judis.nic.in Page 9 of 12 CRL.O.P.No.3534 of 2020
9. In the case on hand, the alleged cheques were not issued by the petitioner to the respondent towards legally enforceable debt. Those cheques were issued by the petitioner to one Geetha and the said cheques were handed over to the respondent herein and the same were presented for collection. As such the present complaint has been lodged with malafide intention and not for legally enforceable debt by the petitioner herein. Therefore, the present complaint lodged by the respondent herein cannot be sustained as against the petitioner and liable to be quashed.
10. Accordingly, this Criminal Original Petition is allowed and the proceeding in S.T.C.No.414 of 2019 on the file of the Fast Tract Court (Magistrate Level) No.II, Erode, is hereby quashed. Consequently, connected miscellaneous petitions are closed.
18.09.2020 Internet : Yes / No Index : Yes / No Speaking / Non Speaking order rts http://www.judis.nic.in Page 10 of 12 CRL.O.P.No.3534 of 2020 To
1. The Presiding Officer, Fast Tract Court (Magistrate Level) No.II, Erode http://www.judis.nic.in Page 11 of 12 CRL.O.P.No.3534 of 2020 G.K.ILANTHIRAIYAN, J.
rts CRL.O.P.No.3534 of 2020 and Crl.M.P.No.2075 & 2076 of 2020 18.09.2020 http://www.judis.nic.in Page 12 of 12