Advocates:
['M/S R BASKAR', '', 'S BASKARAN', 'J RAJENDRAPRABU', 'AFFIDAVIT FILED', '', 'M/S S V D RAJENDRA PRASAD', 'J VIVEKANANDHAN']

IN THE HIGH COURT OF JUDICATURE AT MADRAS

RESERVED ON

:22.03.2022

PRONOUNCED ON

:29.03.2022

CORAM:

THE HONOURABLE DR. JUSTICE G. JAYACHANDRAN

CRL.O.P.NO.31018 OF 2019

AND

CRL.M.P.NOS.16884 AND 16886 OF 2019

P.Saravana Kumar, aged about 46 years (A-2)

S/o M.Ponnusamy,

Authorized Signatory,

Jaandar Apparels,

D.No.20/24, M.G.R.Nagar,

8^th Street, Behind Santhi Theatre,

P.N.Road,

Tiruppur Lakshmi Nagar,

Tamil Nadu 641 602.

.. Petitioner/Accused

/versus/

S.P.Vijaya Kumar, aged about 50 years,

S/o Mr.Subramanian

No.25-A, Rangarajapuram Main Road,

Kodambakkam,

Chennai 600 024.

..Respondent/Complainant

Criminal Original Petition has been filed under Section 482

of Cr.P.C., praying to call for the records in C.C.No.2951/2019

pending on the file of the learned Metropolitan Magistrate, FTC

No.III, Saidapet, Chennai, quash all further proceedings as

against him in the said case in C.C.No.2951/2019.

For Petitioner

:Mr.R.Baskar

For Respondents

:Mr.S.V.D.Rajendra Prasad

O R D E R

This Criminal Original Petition has been filed praying to

call for the records in C.C.No.2951/2019 pending on the file of

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the learned Metropolitan Magistrate, Fast Track Court No.III,

Saidapet, Chennai, quash all further proceedings as against him

in the said case in C.C.No.2951/2019.

2.The petitioner is the second accused in the private

complaint laid under Section 138 of Negotiable Instruments Act,

1881. He prays to quash the complaint against him on the ground

that the subject cheque is issued from the account maintained by

M/s Jaandar Apparels, a Proprietorix concern owned by the first

accused Mrs.Thilagavathy. He is the authorised signatory of the

Proprietorix concern to sign cheques, but he is not the drawer

of the cheque on the account maintained by him. Therefore, for

dishonour of the subject cheque, he cannot be criminally held

liable to be prosecuted under Section 138 of the Negotiable

Instruments Act 1881.

3.The learned counsel for the petitioner/accused submitted

that, Section 138 of the Negotiable Instruments Act, 1881 holds

responsible only the person, who draws the cheque on an account

maintained by him. Section 7 of the Negotiable Instruments Act,

1881 defines, who is a Drawer. In case of a bank account in the

name of the Proprietor concern, only the proprietor is liable

and not the mandate holder or the authorised signatory be liable

for the dishonour of the said cheque. Unlike ‘company’ defined

in Section 141 of the Negotaiable Instruments Act, a ‘Proprietor

concern’ is not owned by collection of persons but owned by

individual. Therefore, the principle of vicarious liability will

not apply. The said individual, who owns the Proprietor concern

alone is liable to be prosecuted, since he/she alone maintains

the account and not the authorised signatory.

4.To buttress his submission, the learned counsel for the

petitioner rely upon the judgment of this Court rendered in

N.Gopalan –vs- K.Udayakumar reported in [2009(4) CTC 217].

5.The Learned Counsel for the respondent/defacto complainant

in contra submitted that, the petitioner is the person, who has

drawn the cheque in the capacity as the authorised signatory of

the Proprietor concern “Jaanthar Apparels”. The cheque was

issued to discharge the debt of the proprietor concern. The

proprietor of the concern ‘Jaanthar Apparels’ is the first

accused Thilagavathy, who is none else than the wife of this

petitioner. The petitioner is arrayed as an accused not

vicariously but for issuing a cheque without sufficient fund in

the account which he is maintaining as authorised signatory.

Under Banking Law, the account holder need not necessarily be

the person, who is authorised to maintain. Whether it is Company

or Partnership firm or Proprietorship concern, bank permits

persons to represent those entities on due authorisation or

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