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1997 DIGILAW 876 (MAD)

K. N. Sadagopan v. T. C. Govindarajan

1997-08-19

S.M.SIDICKK

body1997
Judgment :- These are five petitions filed by the Petitioner/accused under S. 482 of Cr.P.C. to call for the records in C.C. No. 1067/94, 1071/94, 1070/94, 1069/94 and 1068/94 on the file of X Metropolitan Magistrate, Egmore, Madras and quash the same 2. All these five Criminal Original Petitions were heard together, and the petitioner and respondent are one and the same in all these five petitions, and the contentions raised by them are similar, and these five petitions are being disposed of by way of a common order 3. The material allegations in these five petitions are identical and they are as follows :- The petitioner was in need of capital for his business. The respondent offered to provide financial help and paid Rupees three lakhs on 17-5-1993. An agreement was reduced into writing by which clause 5 the petitioner has to pay Rs. 15, 000/- per month apart from 50% of the profits. Clause 6 provides that if the petitioner (sic) wants to withdraw his amount, he should give one months notice after a period of one year. Later the respondent pressed for his money back against cl. (6) of the agreement. Since the petitioner was not having ready cash, the petitioner gave 15 post dated cheques towards repayment and also gave his wife's property to the respondents mother by a power of attorney dated 11-3-1994 to sell the same to liquidate the loan and return the cheques. The value of the house was about Rupees 10 to 12 lakhs and the loan amount on that day was about Rupees 7 lakhs and odd. All of a sudden the petitioner received a legal notice on 17-11-1994 calling upon him to pay a sum of Rupees 6, 35, 000/- arising out of the amount issued by way of post dated cheques. The petitioner issued a reply on 6-12-1994, bringing all the fact to the respondent's counsel that the amount of Rupees 1, 23, 000/- was paid by demand draft and property worth Rupees 7, 88, 500/- was given to her mother and Rs. 40, 000/- was paid totalling a sum of Rupees 9, 51, 500/- and thereby an excess amount of Rupees 6, 500/- was with the respondent, and on the date of notice there is no debt or liability enforceable against the petitioner. 40, 000/- was paid totalling a sum of Rupees 9, 51, 500/- and thereby an excess amount of Rupees 6, 500/- was with the respondent, and on the date of notice there is no debt or liability enforceable against the petitioner. The respondent having taken Rupees 9, 51, 500/- towards the loan retained the cheques with him and has filed the above five complaints before the Magistrate's Court and the proceedings are liable to be quashed. There was no legally enforceable debt or liability on the date of filing of the five complaints. The notice was not served on the petitioner since he was out of station. Only on 6-12-1994 he came to know about the notice and he replied immediately. On the complaint the cause of action is not mentioned as to which date was to be taken as the crucial date for calculating the time for filing the complaints. The provision in S. 138(c) of the Act is silent in such cases where the amount is not due and payable. The trial Court proceeded without looking into the legality and the application of the provision of law. Hence these petitions are filed to quash the proceedings before the trial Magistrate 4. It is opposed by the Respondent/Complainant 5. After hearing the learned counsel for both the parties in all these five petitions, the point that arises for determination is as to whether the petitioner/accused is entitled to the reliefs prayed for in all these five petitions u/S. 482 of Cr.P.C 6. Point :- The learned counsel for the petitioner contended that the allegations made in the complaints in C.C. Nos. 1067, 1071, 1070, 1069 and 1068/94 on the file of X Metropolitan Magistrate, Egmore, Madras by the respondent/complainant will not constitute an offence under S. 138 of the Negotiable Instruments Act, and the proceedings initiated by the respondent/complainant in the above C.C. Nos. are not maintainable on three grounds :- (1) The loan amount of Rupees Seven Lakhs and odd was discharged by the petitioner/accused by sending a demand draft for a sum of Rs. are not maintainable on three grounds :- (1) The loan amount of Rupees Seven Lakhs and odd was discharged by the petitioner/accused by sending a demand draft for a sum of Rs. 1, 23, 000/- and by sale proceeds of Rupees 7, 88, 500/- and a sum of Rupees 40, 000/- paid in cash totalling a sum of Rupees 9, 51, 500/-, and thereby an excess amount of Rupees 6, 500/- was paid to the respondent/complainant and as such, there is no legally enforceable debt as against the petitioner on the date of the filing of the complaints; (2) The notice of demand as required under S. 138 of the Negotiable Instruments Act was not served on the petitioner and (3) By the time all the five cheques issued by the petitioner/accused in favour of the respondent/complainant were presented to the Bank for collection, the account of the petitioner/accused in his bank was closed, whereas these five cheques were returned by the bankers with an endorsement "insufficient funds" and so the endorsement as "insufficient funds" is diametrically opposite to the write up on the face of the cheques as "Account closed" 7. The learned counsel for the respondent/complainant refuted all these contentions put forward on behalf of the petitioner/accused and stated that the trial Court has recorded the oral as well as documentary evidence in this case and the counsel appearing for both parties have also submitted their written arguments and at the time when the petitioner's counsel wanted to address oral arguments, the petitioner/accused has come forward with these five petitions under S. 482 of Cr.P.C. to exercise the inherent jurisdiction of this Court to quash the complaints in the above said C.C. numbers, and the allegations in the complaints has made out an offence triable by a Magistrate, and as a matter of fact, the Magistrate has almost completed the trial and judgment alone is to be pronounced by the lower Court in these cases, and in such circumstances these five petitions are not maintainable 8. All the contentions raised by the learned counsel for the petitioner/accused viz., no legally enforceable debt, no notice of demand as required by law and the inconsistency in the endorsements made by the Banks are all matters for appreciation of evidence. All the contentions raised by the learned counsel for the petitioner/accused viz., no legally enforceable debt, no notice of demand as required by law and the inconsistency in the endorsements made by the Banks are all matters for appreciation of evidence. If the case of the petitioner/accused was that the allegations made in the complaints do not constitute an offence complained of or that the complaint has to be quashed for anyone of the grounds mentioned above, the petitioner/accused should have approached the High Court immediately after the charges were framed in the year 1994. Per contra, the petitioner/accused has filed these five petitions under S. 482, Cr.P.C. after a lapse of more than three years especially when the trial of these cases was almost completed and the judgment in these cases are to be pronounced. Therefore the petitioner is not entitled to the reliefs prayed for in all these five petitions due to his latches 9. Even otherwise by the date when these original petitions were filed before the High Court, under S. 482 of Cr.P.C., several witnesses of the complainant were examined and they had also been cross-examined by the petitioner/accused. Several items of documentary evidence had already been marked during the trial and written arguments were also submitted by both the parties. Therefore the appropriate course to be adopted by this Court is to allow the proceedings to go on and to come to its logical conclusion one way or the other and this Court will decline to interfere with those proceedings under S. 482 of Cr.P.C. The questions as to whether the evidence on record in the above said C.C. Nos. on the file of X Metropolitan Magistrate, Egmore, Madras establishes that an offence under S. 138 of Negotiable Instrument Act has been committee or not is a matter for trial Court to come to the conclusion one way or the other after the appraisal of the entire evidence that has been adduced by the complainant as well as by the defence. The questions of fact viz., no liability or no debt, no notice of demand as required by S. 138 of Negotiable Instruments Act and the inconsistency in the endorsements of the bankers on the dishonoured cheques are all matters to be decided by the trial Court after the appreciation of evidence from the oral and documentary evidence that has been let in before the trial Court. In such circumstances this is not a fit case to interfere under S. 428 of Cr.P.C. to quash the proceedings in the above said C.C. numbers. This view gains support from the decision of the Supreme Court reported in Amar Chand v. Shanti Bose, 1973 AIR(SC) 739 : 1973 CrLJ 577 ) wherein it was laid down as follows :- "Where the accused moved the High Court at the time when the trial was almost coming to a close and what remained to be done was the examination of two prosecution and one Court witnesses and the High Court quashed the charge and the entire proceedings on the grounds that the complainant suppressed material facts and that the evidence on record did not establish the alleged offence, the order was liable to be set aside. The proper course at that stage to be adopted by the High Court was to allow the Proceedings to go on and to come to its logical conclusion, one way or the other, and decline to interfere with those proceedings. The questions whether there was suppression and whether the evidence established the alleged offence were matters to be considered by the trial Court after an appraisal of the entire evidence" * 10. Further the Supreme Court in the decision reported in State of Haryana v. Bajan Lal held that the power of quashing a criminal proceeding under S. 482 of Cr.P.C. should be exercised very sparingly and that too in the rarest of rare cases. This is not one of the rarest of rare cases. The Supreme Court in another decision reported in State of Madhya Pradesh v. Dr. Krishnachandra 1997 1 Crimes 4 (SC) pointed out that the High Court under S. 482 of Cr.P.C. will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the complaint. The Supreme Court in another decision reported in State of Madhya Pradesh v. Dr. Krishnachandra 1997 1 Crimes 4 (SC) pointed out that the High Court under S. 482 of Cr.P.C. will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the complaint. The allegations made in the complaint, a copy of which is filed along with the typed-set of papers with these petitions, will prima facie show that they constitute an offence triable by a Magistrate, and the learned Magistrate has also conducted the trial and almost completed the trial, and the trial Court is at the threshold of pronouncing a judgment in these cases. The allegations in the complaint filed by the respondent/complainant are not absurd or inherently improbable. The Criminal Proceedings in all the five cases are not manifestly attended with mala fides and the proceedings were not maliciously instituted with ulterior motive for wreaking vengeance and there is no abuse of process of the Court 11. Considering the above facts and circumstances of the case, I am to hold that the petitioner/accused in all these five petitions is not entitled to the reliefs prayed for under S. 482 of Cr.P.C. and all these five petitions have to be dismissed and consequently I answer this point as against the petitioner/accused. 12. In the result, all these five Criminal Original Petitions viz., Crl.O.P. Nos. 10024 to 10028/97 are dismissed. Consequently the stay petitions in Crl.M.P. Nos. 3292/97 to 3296/97 are also dismissed as unnecessary.