Proceedings under Section 138 of the Negotiable Instruments Act cannot be sustained when the underlying debt is based on an arbitration award that has been set aside and there is clear evidence indicating the document was misused as security rather than for a legally enforceable debt.

ORDER :

G.K.ILANTHIRAIYAN, J.

This criminal original petition has been filed praying to quash the proceedings in STC.No.7860 of 2022 on the file of the Court of the learned Metropolitan Magistrate, Fast Track Court-III, At Saidapet, Chennai for the offences punishable under Sections 138 and 142 of the Negotiable Instruments Act, 1881.

2. The petitioner is the accused in the complaint lodged by the respondent for the offence punishable under Section 138 of NI Act alleging that the accused, a builder by profession, was indebted to the complainant to the extent of Rs.9,27,72,333/- together with interest at the rate of 18% per annum and the principal amount of Rs.5,54,00,000/- from 04.05.2018 pursuant to arbitration award dated 22.10.2018. The award came to be passed on the borrowal of Rs.5,54,00,000/- by the accused while depositing original sale deed in respect of a third party immovable property bearing document No.397 of 1964. On the basis of the arbitration award dated 22.10.2018 in award No.5 of 2018, the accused was directed to pay a sum of Rs.9,27,72,333/- in favour of the complainant. Subsequent to the award, the complainant filed execution petition. At that juncture, the accused approached the complainant on 16.07.2019 and agreed to pay a sum of Rs.1,65,00,000/- against the release of the third party’s property document and issued cheque dated 15.07.2019. It was presented for collection. However, it was returned dishonoured for the reason ‘funds insufficient’. After issuing statutory notice, the respondent initiated proceedings under Section 138 of NI Act and the same has been taken cognizance by the trial court.

3. The learned counsel for the petitioner would submit that even according to the respondent, on the basis of the award passed by the arbitrator, the accused issued cheque for a sum of Rs.1,65,00,000/- to release the third party’s property documents. The very arbitration award itself was challenged before this Court in Arbitration OP.Nos.381 and 382 of 2022 and the same was set aside by this Court by a common order dated 29.04.2024. In fact, in the arbitration award, the accused was set ex parte. Further, the petitions under Section 34 of Arbitration and Conciliation Act challenging the arbitration award were filed before this Court even before issuance of the alleged cheque. Therefore, the cheque was not at all issued for any legally enforceable debt. Further, the cheque was not issued in favour of the partnership firm and it was issued in the individual capacity of one, T.Jayaraman. Further, the said cheque was presented for collection in the account held by the partnership firm. Thereafter, the partnership firm filed complaint representing through its power of attorney in the year 2019 itself. Though on the date of filing the suit, both the partners were very much alive, thereafter one of the partners died on 01.04.2020 and thereafter the same power of attorney had given his sworn statement before the trial court and on the basis of which, the trial court had taken cognizance and issued summons for the offence punishbale under Section 138 of NI Act. Once the partner died, the partnership firm ceased to exist and suppressing the fact that one of the partners died, the power of attorney had given his sworn statement to proceed with the case against the accused. Therefore, the trial court ought not have taken cognizance on the sworn statement of the power of attorney who had no power to conduct the case since one of the partners died and the partnership firm itself became defunct.

3.