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2000 DIGILAW 1270 (MAD)

S. Thangamani v. R. S. T. Steels

2000-12-12

M.KARPAGAVINAYAGAM

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Judgment :- M. KARPAGAVINAYAGAM, J. S. Thangamani, proprietor of M/s. Meenakshi Agencies, Melur, the petitioner herein, is the accused in a private complaint filed by the respondent for the offence under section 138 of the Negotiable Instruments Act, 1881. According to the complainant/respondent, the petitioner/accused had dealings with the complainant in purchase of goods on credit. In discharge of the said liability, the accused issued a cheque for Rs. 1, 50, 000 on April 28, 1999. The complainant presented the cheque on October 21, 1999, for encashment. But, the said cheque was returned on November 2, 1999, with the endorsement "insufficiency of funds" and the same was intimated by the bank on November 6, 1999. It is mentioned in the complaint that the cheque in question was issued when the balance due from the accused was Rs. 1, 01, 574 since the excess amount could be for the future purchase. After dishonour, the complainant issued a notice to the accused on November 17, 1999. On receipt of the notice, the petitioner sent a reply admitting the issuance of the cheque, but stating some false allegations. Therefore, the complainant had filed the complaint. Seeking to quash the said proceedings, the petitioner has raised the following ground : "Even according to the complainant, the liability was only Rs. 1, 01, 574, but the cheque was issued for Rs. 1, 50, 000. Therefore, the complaint calling for the entire amount covered in the cheque is illegal and consequently, the cognizance taken by the learned magistrate in respect of the cheque for Rs. 1, 50, 000 is liable to be quashed". In elaboration of the above point, learned counsel for the petitioner would contend that since the cheque amount is more than the existing liability as on the date of the cheque, the complaint cannot be filed in respect of the entire cheque amount, as there is no liability on the date of issuance of the cheque for the entire cheque amount. It is also contended by learned counsel for the petitioner that the cheque was given not towards discharge of the liability, but only as a security.In reply to the said submission, learned counsel for the respondent would submit that the complaint was filed only for the offence committed by the petitioner for having not paid the amount of Rs. 1, 01, 574. Moreover, the liability of Rs. 1, 01, 574. Moreover, the liability of Rs. 1, 01, 574 which was included in the cheque amount had not been paid within the stipulated time and therefore, the complaint which has been filed in time for the non-payment of the cheque amount is perfectly valid. I heard the argument of counsel for the respective parties. With regard to the point in relation to security, I am of the view that whether the cheque was given as security or towards discharge of liability is a question to be decided by the trial court during the course of trial. Therefore, the point regarding issuance of cheque as security cannot be urged at this stage before this court. The other point raised by counsel for the petitioner regarding absence of existing liability in respect of the entire cheque amount requires consideration. It is true that the complainant in the complaint would say that the cheque was issued for Rs. 1, 50, 000 even though the liability as on the date of issuance of cheque was Rs. 1, 01, 574. There is no dispute in the fact that the statutory notice was issued after dishonour claiming only Rs. 1, 01, 574 and not the entire cheque amount. Thus, it is clear that demand of the complainant/respondent is only for a portion of the cheque amount, which was the existing liability as on the date of the cheque. These factors have been clearly given in the complaint also. Even though the cheque amount was Rs. 1, 50, 000 so long as there exists liability with reference to a portion of the cheque amount, in my view, the complainant would be perfectly well within his right to invoke the required provisions of the Act. Therefore, when the cheque was dishonoured, the complainant sent a statutory notice demanding only the portion of the cheque amount, namely, Rs. 1, 01, 574.The words "such amount" as contemplated under section 138 of the Negotiable Instruments Act, would relate to the portion of the cheque amount because even according to the complaint, though the cheque was obtained for more amount, it was issued only towards discharge of only a portion of the cheque amount, namely Rs. 1, 01, 574. Therefore, the meaning of the words "such amount" would indicate not with reference to the cheque amount but with reference to the amount of liability, namely, Rs. 1, 01, 574. 1, 01, 574. Therefore, the meaning of the words "such amount" would indicate not with reference to the cheque amount but with reference to the amount of liability, namely, Rs. 1, 01, 574. Therefore, the notice sent by the complainant demanding Rs. 1, 01, 574 being the portion of the cheque amount, is perfectly valid and if the said amount had not been paid within 15 days from the date of receipt of the said notice, it is natural that the cause of action would arise and consequently, the complainant would be entitled to approach the court by filing a complaint under section 138 of the Negotiable Instruments Act. In a similar situation, the Andhra Pradesh High Court in Andhra Engineering Corporation v. T.C.I. Finance Ltd. 1999 3 Crimes 504 , would hold that the portion of the amount either more than the cheque amount or less than the cheque amount would not make either the notice or the complaint invalid, in view of the fact that non-payment of the balance amount, though it is a portion of the cheque amount, despite receipt of notice, would definitely create a cause of action under section 138(1)(c) of the Negotiable Instruments Act. Therefore, this ground raised by counsel for the petitioner, in my view, does not merit acceptance and the same has to be rejected and accordingly, the petition is dismissed. The trial court is directed to go on with the trial and dispose of the matter as expeditiously as possible. The Registry is directed to send the order copy to the trial court immediately. Consequently, Crl. M.P. No. 1872 of 2000 is closed.