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Ravikumar v/s M/s. Arasan Fashion Design Private Ltd., Through its Clerk, P. Shajahan

    Crl.O.P.(MD).No.691 of 2007 and M.P(MD).Nos.2 and 3 of 2007

    Decided On, 05 July 2007

    At, Before the Madurai Bench of Madras High Court


    For the Petitioner : M.S. Suresh Kumar, Advocate. For the Respondent: V. Kathirvelu, Advocate.

Judgment Text

(Prayer: Petition filed under Section 482 of the Code of Criminal Procedure, to call for the records in S.T.C.No.4916 of 2006 pending on the file of the learned Judicial Magistrate No.IV, Tirunelveli, and quash the same.)

This petition has been filed to call for the records in S.T.C.No.4916 of 2006 pending on the file of the learned Judicial Magistrate No.IV, Tirunelveli, and quash the same.

2. The facts giving rising to the filing of this petition would run thus:

S.T.C.NO.4916 of 2006 emerged on the complaint lodged by M/s.Arasan Fashion Design Private Ltd., through its Clerk, P.Shajahan, with the learned Judicial Magistrate No.IV, Tirunelveli under Sections 138 and 142 of the Negotiable Instruments Act, as against V.Anantha Rajan, Ravikumar and M/s.TEX'O SEAS.

3. Being aggrieved by and dissatisfied with, such a case having been taken on file by the learned Magistrate as against the petitioner herein, who is arrayed as A.2 therein, this petition is focussed.

4. The fact remains that A.1, V.Anantha Rajan, is the person who actually signed the cheque and not the petitioner herein, A.2. However, the petitioner/A.2 is arrayed as accused as though he happened to be the partner of M/s. TEX'O SEAS, A.3.

5. According to the petitioner, he is having nothing to do with the partnership firm and he did not also issue any cheque in favour of the complainant.

6. At this juncture, I would like to refer to the decision of the Honourable Apex Court in Saroj Kumar Poddar v. State (NCT of Delhi) reported in (2007) 2 Supreme Court Cases (Cri) 135 relating to the Companies Act which is also applicable to the Partnership Firm. An excerpt from it, would run thus:

"14. The appellant did not issue any cheque. He had resigned from the directorship of the Company. It may be true that as to exactly on what date the said resignation was accepted by the Company is not known, but, even otherwise, there is no averment in the complaint petitions as to how and in what manner the appellant was responsible for the conduct of the business of the Company or otherwise responsible for dishonour of the cheque has not been stated. The allegations, thus, do not satisfy the requirements of Section 141 of the Act.

15. Allegations to satisfy the requirements of Section 138 of the Act might have been made in the complaint petition but the same principally relate to the purported offence made by the Company. With a view to make a Director of a company vicariously liable for the acts of the company, it was obligatory on the part of the complainant to make specific allegations as are required in law."

7. Applying the aforesaid decision, if the complaint is perused, it is clear that the complaint falls foul of the dictum in the aforesaid decision. There is nothing in the complaint which would show that A.2, the petitioner herein, also had anything to do with the issuance of the cheque. Furthermore, the learned Counsel for the petitioner would produce the certified copy of Form-A, Registrar of Firms, and as per which, it is clear that at no point of time, the petitioner was a partner in that A.3, the Firm. Hence, absolutely, there is no rhyme or reason in arraying the petitioner as A.2 in that complaint.

8. The learned Counsel for the complainant would submit that the petitioner was not justified in producing the certified copy of the aforesaid document and pray for quashment.

9. In my opinion, while this Court exercising its power under Section 482 Cr.P.C, for the purpose of curbing illegal proceedings being carried on in the lower Court, can very well look into it and render justice. There is nothing to show that as to why that document should not be relied upon. Furthermore, as per the dictum of the Hon

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ourable Apex Court the complaint is bereft, niggard and denude of any averment linking the petitioner with the crime. 10. Hence, for all these reasons, the complaint in S.T.C.No.4916 of 2006, pending on the file of the learned Judicial Magistrate No.IV, Tirunelveli, as against the petitioner alone is quashed. Accordingly, this petition is disposed of and consequently, connected M.P.(MD)Nos.2 and 3 of 2007 are closed.