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2003 DIGILAW 1639 (MAD)

Pon Abarnam Finance Ltd v. P. D. Xavier

2003-10-14

V.KANAGARAJ

body2003
Judgment :- The above criminal original petition has been filed under Section 482 of the Code of Criminal Procedure praying to call for the records in C.C.No.261 of 2002 on the file of the Judicial Magistrate, No.I, Kancheepuram and quash the same. 2. On a perusal of the materials placed on record and upon hearing the learned counsel for both, it comes to be known that the respondent filed a private complaint against the petitioner in C.C.NoO.261 of 2002 on the file of the Judicial Magistrate, NO.I, Kancheepuram, alleging that the petitioner had committed an offence under Section 138 of the Negotiable Instruments Act. Learned counsel for the petitioner submits that the said private complaint is not maintainable as for a sum of Rs.18,00,000/- borrowed, the petitioner company had issued 18 cheques of Rs.1,00,000/- each out of which Rs.5,00,000/- were sent along with letter dated 2.1.2002 and 13 cheques were sent along with letter dated 12.2.2002. The respondent is said to have deposited one cheque on 18.6.2002 and it was returned for want of funds. The learned counsel for the petitioner submits that the issuance of cheque was not in discharge of any legally enforceable debt or liability of the petitioner. In fact, the cheques were issued towards the loan which he promised to grant and as such there is no breach of contract. Therefore, the petitioner seeks to quash the case in proceedings in the above C.C number. 3. During arguments learned counsel for petitioner would only reiterate the averments broughtforth in the above criminal original petition without pleading any new facts or bringingforth any new circumstances or pleading the law and therefore tracing the same will only be a repetition of the same facts and circumstances and time consuming affair. 4. On the part of the learned counsel for the respondent it would be argued to the effect that on those facts and denial of the averments, only the trial could be the answer since the definite case has been registered on bouncing of 18 cheques each given for a sum of Rs. 4. On the part of the learned counsel for the respondent it would be argued to the effect that on those facts and denial of the averments, only the trial could be the answer since the definite case has been registered on bouncing of 18 cheques each given for a sum of Rs. 1 lakh, thus for a total sum of Rs.18 lakhs and hence on such factual denial, this Court cannot decide whether the case put up by the respondent is true or not and it is the trial Court which could decide on such facts with full opportunity for both parties to be heard and the matter decided. On such arguments learned counsel for the respondent would cite the following judgments respectively reported in (1) 2002(1) Crime 673 (2) 2002(4) Crimes 267 , (3) 2002(4) Crimes 354 (4) 2003(2) C.T.C. 31 5. So far as the first judgement cited above is concerned, it is held by the single Judge of Andhra Pradesh High Court that the moment the cheque is issued it shall be presumed that it was legally enforceable debt or liability unless the contrary is proved. In the second Judgement cited above, the learned single Judge of the Delhi High Court has held the proposition held by the Hon'ble Apex Court in Sadanandan Bhadran's case in the following manner "At that stage, it will not be a question of waiver of the right of the payee to prosecute the drawer but of absolution of the drawer of an offence, which stands already committed by him and which cannot be committed by him again." which cannot applied to the facts of the case decided by the learned Judge of the Delhi High Court. In the third judgement cited above, the learned single Judge of the Bombay High Court has held that the purchaser of cheque is the holder-in-due course and it is not necessary that in favour of the purchaser of cheque there should be an endorsement also. In the third judgement cited above, the learned single Judge of the Bombay High Court has held that the purchaser of cheque is the holder-in-due course and it is not necessary that in favour of the purchaser of cheque there should be an endorsement also. In the last judgment cited above, which is by this Court, wherein the trial court rendered finding that the complainant did not produce any record for payment of money to the accused and did not maintain payment of the income tax in proof of the issuance of the cheque in discharge of the liability and since the accused admitted issuing the cheques in favour of the complainant but adding that under coersion by the police authorities during investigation coupled with the fact that the accused did not give any reply to the statutory notice issued by the complainant, it has been held that the trial court did not consider the scope of Section 139 of the Negotiable Instruments Act. On such arguments learned counsel would seek to dismiss the criminal original petition. 6. In consideration of the facts pleaded, having regard to the materials placed on record and from the whole averments of the petitioner and the arguments of the learned counsel, the only legality that is argued on the part of the petitioner is that the cheques were not issued for the discharge of any legally enforceable debt or liability to the respondent; that the cheques were issued only towards the loan which he promised to grant and as such there is no breach of contract. 7. So far as this aspect is concerned, Section 139 of the Negotiable Instruments Act is the answer which gives the power to the Court to presume that the moment the bounced cheque is produced before the Court on a complaint, the Court could presume that the cheque has been issued only for the discharge of legally enforceable debt or liability and therefore as against the said provision of law merely alleging that it has not been issued in discharge of any legally enforceable debt or liability but only towards the loan which the respondent promised to grant and as such no breach of contract etc. could be accepted. 8. could be accepted. 8. Since the above only legality broughtforth is also answered in the negative as aforementioned, this Court is of the view that all other factual position of the case will be gone into by the trial Court at the time of trial and therefore the interference of this Court sought to be made into the case pending for trial in C.C.No.261/2002 on the file of the Court of Judicial Magistrate I, Kancheepuram, by quashing the chargesheet is neither necessary nor incumbent on the part of this Court and the only conclusion that could be arrived at in these circumstances, is to dismiss the above criminal original petition as devoid of merits and the same is ordered accordingly. In result, (i) there is no merit in the above criminal original petition and the same is dismissed as such. (ii)consequently Crl.M.P.No.3731/2003 is also dismissed.