O R D E R

This Criminal Original Petition is filed under Section 482 Cr.P.C. to quash the proceedings filed under Section 138 r/w 142 of Negotiable Instruments Act, 1881 in S.T.C.No.363 of 2020 pending on the file of the learned Fast Track Court Judicial Magistrate No.II, Erode.

2.The Petitioner Trust entrusted a construction work to the complainant and there is a due of Rs.3 crores towards the said work. The 2nd accused being the Managing Trustee of the Trust had issued a cheque with a consent of others. It is also stated that the said contract itself is executed by the 2nd, 3rd, 4th and 5th accused. When the cheque was presented for encashment, the same was returned with an endorsement “insufficient funds”. Thereafter, statutory notice was issued and the present complaint has been filed.

3.The petitioners in this petition are A3 to A38. It is the contention of the learned counsel for the petitioners that merely because these petitioners are the Trustees and also made as accused, the fact remains that the 2nd accused only was acting as a Managing Trustee and she is in- charge of the Trust. Therefore, in the absence of any averment made in the complaint as to the role played by the other trustees, they cannot be prosecuted.

4.Whereas, the learned counsel for the respondent would submit that the 2nd, 3rd, 4th and 5th accused have originally signed the contract for construction, which clearly shows that they are also incharge of the said Trust. Hence he opposed to quash the complaint in entirety.

5.Heard the learned counsel on either side. This Court perused the entire materials and the complaint.

6.The petitioners herein are shown as the Trustees and the subject cheque was issued by the 2nd accused as a Managing Trustee. Though it is a Trust, this Court vide its judgment reported in 2012 (5) CTC 203 in Abraham Memorial Educational Trust V.C.Suresh Babu held that;

A Trust, either private or public / charitable or otherwise, is a juristic person who is liable for punishment for the offence punishable under Section

138 of the Negotiable Instrument Act.

A Trust either private or public / charitable or otherwise, having either a single trustee or two or more trustees, is a Company in terms of Section 141 of the Negotiable Instruments Act.

7.Such view of the matter, when the vicarious liability sought to be filed against other trustees, there must be minimum averment in the complaint as to the role played by them. In the complaint, except the averment made that the cheque was issued with the knowledge of others, no specific overt act is made as against 6th to 38th accused. Whereas, it is specifically alleged that the contract for construction was executed by the 2nd, 3rd, 4th and 5th accused on behalf of the 1st accused and that can be construed that they are incharge of the affairs of the Trust. Whereas, in respect of other accused viz. 6 to 38, there is no averment as to the specific role played by them and their responsibility to the day to day affairs of the Trust.

8.In view of the above, this Court is inclined to quash the proceedings as against the accused Nos.6 to 38 and the prosecution shall continue in respect of other accused viz. accused Nos.1 to 5.

9.This petition stands partly allowed accordingly. The complaint filed u/s.138 of N.I.Act pending in S.T.C.No. 3660 is quashed in respect of the accused 6 to 38 alone. Consequenlty, the connected miscellaneous petitions are closed.

13.07.2022 kas Index: Yes / No Internet : Yes / No Speaking / Non Speaking order N.SATHISH KUMAR, J.

kas and Crl.M.P.No.3325 and 3329 of 2022

13.07.2022