(1) This petition is to quash the private complaint filed in c. C. No. 923 of 2004 pending trial before the court of learned judicial magistrate, karur.
(2) That complaint was filed on 20 - 1 - 2004 by one r. Rmalingam son of ramasamy represented by his power of attorney, mr. Subramani describing himself as complainant. The complaint was filed against a. 1, i. E. A partnership firm in the name of m/s. Century food industries and a. 2, the managing partner and his wife a. 3; along with them, two other persons, the petitioners herein were also arrayed as a. 4 and a. 5.
(3) That complaint was lodged for bouncing of a cheque dated 13 - 10 - 2003 for a sum of rs. 56,00,000/ - issued by a. 2 in favour of the complainant and therefore, the complaint was preferred under section 138 of negotiable instruments act.
(4) Learned counsel for petitioners submitted that the cheque was issued on 13 - 10 - 2003 and the petitioners retired themselves even on 31 - 3 - 2003 and form - a filed before the registrar of firms, karur, also would show the same in proof of their resignation on 31 - 2 - 2003. Learned counsel for petitioners argued that when the petitioners a. 4 and a. 5 have the resigned themselves from the partnership of the firm, there cannot be any liability fastening against them and, therefore, the magistrate was not right in taking cognizance against these petitioners and hence, the complaint has to be quashed against them.
(5) But as a matter of fact, we have to see as to whether the resignation letter was actually made in 3 1 - 3 - 2003 and that could be made clear during the course of trial and not even earlier. Therefore, that cannot be a ground for quash.
(6) Another point urged by the counsel for the petitioners is that the complainant himself is incompetent to file this complaint because of section 142 - of negotiable instruments act. Section 142 - a of negotiable instruments act provides that notwithstanding anything contained in the code of criminal procedure, no court shall take cognizance of any offence punishable under section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque.
(7) There is no whisper made in the complaint as if the power of attorney by name subrmani, who has been described as the complainant on behalf of one ramalingam, ever been the holder in due course. Even in the notice dated 8 - 12 - 2003 of the payee ramalingam, it was stated that he alone had presented the cheque for encashment and, therefore, it is made clear that subramani was not the holder in due course. Learned counsel further submitted that it is only in favour of ramalingam cheque was issued and he only presented the cheque for encashment. This is fortified even by the notice of ramalingam himself. So, the complaint lodged by ramalingam through his power of attorney, subramani is hit under section 142 - a and according to which, no court shall take cognizance of any offence punishable under section 138 negotiable instruments act except upon a complaint made by the payee or the holder in due course of the cheque. As the power of attorney in this case was not the holder in due course, it is not correct on the part of the magistrate for taking cognizance of the complaint and on that ground alone this complaint is liable to be quashed and the same is, accordingly quashed.
(8) The criminal original petition is allowed. Connected miscellaneous petitions are closed. Petition allowed.