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2002 DIGILAW 1148 (MAD)

P. Sumathi v. M. P. Ashok

2002-09-27

A.PACKIARAJ

body2002
Judgment :- This petition has been filed to quash the private complaint filed against the petitioner for offence under Section 138 Negotiable Instruments Act. 2.The brief facts that are necessary for the purpose of disposing of this petition may be stated as follows: The accused, who is the sole proprietrix of Velmathi Textiles, had purchased yarns on credit from Sri Balaji Modern Yarns, Erode and for the said liability, towards the sale purchase, had issued four cheques to Sri Balaji Modern Yarns. Sri Balaji Modern Yarns having received the cheques had made an endorsement in favour of the complainant. The total sum of the three cheques amounts to Rs.3,24,400/- and the fourth cheque relates to Rs.1,22,400/-. The complainant presented the three cheques totalling to Rs.3,24,400/- on 13.10.2000 and the same were dishonoured for want of funds. Hence after observing all the formalities, the present complaint has been filed. 3.The present petition for quashing has been filed mainly on the ground that there is absolutely no debt or liability for the accused towards the complainant and hence provisions under Section 138 Negotiable Instruments Act would not be attracted. However, it has to be seen that 138 Negotiable Instruments Act does not authorise prosecution against the drawee but also holder in due course. But the same has been countered by the learned counsel for the petitioner stating that in the present case the complainant cannot be termed to be a holder in due course since the cheque was not endorsed directly by the drawer to the complainant, but as a matter of fact, it has been endorsed in favour of a third person, who in turn had endorsed it to a fourth person and the fourth person had in turn, endorsed it to the complainant and as such, he cannot be deemed as a holder in due course, but may at best be stated to be a holder. 4.I need not go into this issue as such, as to whether the original drawee has endorsed in favour of the second person, who endorsed it in favour of a third person, who in turn had endorsed it to a fourth person and the fourth person had in turn, endorsed it to the complainant. This matter has to be decided only by the trial court. The learned counsel would no doubt argue that a bare look on the cheque itself would reveal the same. This matter has to be decided only by the trial court. The learned counsel would no doubt argue that a bare look on the cheque itself would reveal the same. It is pertinent to note that the original cheque is not before the court, but only a xerox copy is there. However, this court cannot come to any particular conclusion with this, as to when and under what circumstances the endorsement has been come to be made. As against this endorsement it s the specific case of the complainant that the purchase has been made from Sri Balaji Modern Yarns and the cheque has been drawn in favour of Sri Balaji Modern Yarns and as such, when they are disputed facts and this court sitting under 482 Cr.P.C cannot go into the question of disputed facts and the matter has to be necessarily decided only in the trial court. 5.In support of his contention, the learned counsel would rely on the decision of Sukanraj Khimraja and another Vs. N.Rjagopalan and others ( 1989 1 LW 401 ) wherein their Lordships have held as follows:- "In the instant case, the plaintiff as a brother of M was fully aware that the cheque has been dishonoured and the endorsement in his favour was only after it was returned by the Bank. Therefore, Ex.A-1 has lost its negotiability. Hence, he cannot be a holder in due course". 6.In so far as the decision of the Division Bench of this court is concerned, no doubt, there is an observation that the cheque has lost its negotiability and hence the subsequent endorser cannot be deemed to be a holder in due course. The case arises out of a civil litigation where the claimant sought redress on the basis of the endorsement after the cheque has been dishonoured, without being presented again. Therefore, their Lordships have held that the cheque has lost its negotiability. The case arises out of a civil litigation where the claimant sought redress on the basis of the endorsement after the cheque has been dishonoured, without being presented again. Therefore, their Lordships have held that the cheque has lost its negotiability. The learned Judges in the decision cited supra have not stopped with a mere observation as quoted supra, but had followed with a subsequent sentence which reads as follows :- "This essential characteristic having not been comprehended and more so, when the cheque had never been thereafter presented to the Bank for encashment, the suit as laid, would not have been decreed at all." It is in this context that the learned Judges have held that the plaintiff in that case was not a holder in due course. But in the present case, admittedly, the cheque has not lost its negotiability. The cheque is valid for six months and it could be presented in the bank any number of times before the expiry of six months period. And as a matter of fact, even according to the petitioner, the cheque has been deposited in the bank after the endorsement has already been made on earlier occasions and the cheque has been returned not on account of loosing its negotiability, but only on account of insufficiency of funds. In other words, the cheque in the present case has not lost its negotiability whereas in the case decided by the Division Bench the cheque has not been deposited in the Bank and therefore, their Lordships have held that it has lost its negotiability. In such circumstances, I do not feel that the decision may apply to the facts of this case. Hence I do not see any merit in the points raised by the learned counsel for the petitioner. Secondly, it will not be out of place for me to state that in the present case, PW-1 has been examined on 11.5.2001 and again he was summoned on 24.5.2001 and his examination has continued and at that stage, this petition has come to be filed. In such circumstances, I don't feel it proper to exercise the power of this court vested under 482 Cr.P.C and entertain this petition. 7.In support of this I would rely upon the decision reported in Amar Chand Agarwala Vs. In such circumstances, I don't feel it proper to exercise the power of this court vested under 482 Cr.P.C and entertain this petition. 7.In support of this I would rely upon the decision reported in Amar Chand Agarwala Vs. Shanthi Bose ( AIR 1973 SC 799 ) wherein it has been observed 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 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." 8.For the above said reasons, I see no merits in this petition and the same is therefore, dismissed. Consequently, Crl.M.P.No.5198 of 2001 is also dismissed.