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2003 DIGILAW 1911 (MAD)

C. N. Harikrishnan v. Kinetic Finance Limited

2003-11-21

M.THANIKACHALAM

body2003
Judgment :- The accused in C.C.No.4530/2002 on the file of the IX Metropolitan Magistrate Court, Saidapet, Chennai, has filed this petition, to quash the proceedings against him, alleging that there was no proper and valid notice, before initiating criminal proceedings, that on the date mentioned in the notice, no cheque was issued by him and therefore, he was not in a position to honour the demand, that the notice said to have been issued, before the prosecution, is not signed by the counsel. On these grounds, according to the petitioner, the further proceedings in the criminal case, are unwarranted and therefore, he should be relieved from facing the unnecessary ordeal of the trial. 2. The respondent herein as complainant filed a private complaint against the petitioner, arraying him as an accused, for appropriate punishment under Section 138 of the Negotiable Instrument Act. It is the case of the prosecution, that the accused/petitioner, in order to repay the amount borrowed, along with interest, in equal monthly instalments, issued 12 cheques and one of which is the cheque dated 15.12.2001 for a sum of Rs.2000/-, that when this cheque was tendered for collection, the same was returned without honouring, as payment was stopped by the drawer, and that despite the notice and its acknowledgment, the accused failed to pay the amount and therefore, he should be dealt with accordingly. 3. The learned counsel for the petitioner/accused submits that the accused had not issued the cheque dated 15.12.2002, as mentioned in the notice and therefore, the non payment of the amount for the said cheque, would not attract the penal provisions of Section 138 of N.I.Act. 4. As seen from the notice, preceding to the complaint, the complainant/respondent demanded payment, for the return of the cheque dated 15.12.2002. It is an admitted position that the accused had not issued any cheque dated 15.12.2002. Therefore, according to the learned counsel for the petitioner, the non payment of the amount, for the cheque bounced, after the issuance of notice, would not attract the penal provisions. 5. On the other hand, the learned counsel for the respondent submits, that the date mentioned in the notice as 15.12.2002, is a typographical error and the actual date of the cheque is 15.12.2001, which is very well, known to the accused, the further fact being, the cheque number is given correctly as 900889'. 5. On the other hand, the learned counsel for the respondent submits, that the date mentioned in the notice as 15.12.2002, is a typographical error and the actual date of the cheque is 15.12.2001, which is very well, known to the accused, the further fact being, the cheque number is given correctly as 900889'. The contention of the learned counsel for the respondent appears to be quite reasonable, which could be seen even from the averments in the notice. The notice reads, giving the date of the cheque as 15.12.2002 bearing No.900889, that the cheque was presented on 30.5.2002 and the same was not honoured, because of the payment stopped by the drawer, on 31.5.2002. If really, the cheque is dated 15.12.2002, as incorrectly stated, the subsequent dates would not be 30.5.2002 and 31.5.2002. Taking advantage of the fact that the date of the cheque is not given correctly as 15.12.2001, and the date is given as 15.12.2002, which should be described as typographical error, a contention is raised, as if as per the notice, the accused has not issued any cheque and therefore, there is no liability. 6. Considering the cheque number, which admittedly belongs to the accused and the subsequent notice, non reply for the notice though received, I am of the considered opinion, that the date mentioned in the notice as 15.12.2001, will not invalidate the notice. The notice is issued, to enable the drawer of the cheque, to pay the amount within the stipulated time. When that purpose is served, then it is futile on the part of the drawer to contend, that because of the incorrect date, he was unable to pay the amount. Really, if the accused had issued some other cheque dated 15.12.2002 bearing No.900889, then this contention would be considered at least, whether it could be accepted or not. It is not the case of the petitioner/accused. Further, the dated mentioned as 15.12.2002 is a typographical error or not, has to be further probed, by letting in evidence, in view of the subsequent dates given in the notice, as pointed out supra. In that view, the question of quashing the proceedings on the ground of defective notice or on the ground, because of the defective notice, the accused has not paid the amount, is not desirable at this stage. 7. In that view, the question of quashing the proceedings on the ground of defective notice or on the ground, because of the defective notice, the accused has not paid the amount, is not desirable at this stage. 7. It is the further contention of the learned counsel for the petitioner that the notice is not signed by the counsel. Now the position is, a notice could be issued by fax, telegram, etc. and it is also an admitted position at present that under the theory of 'deemed service', even if a notice is returned or not served by the refusal, there is a possibility of launching the prosecution, ending in conviction also. Therefore, the fact that the notice was not signed by the counsel, could not be a ground for quashing the proceedings. 8. The other contention as seen from the petition regarding the defects in the vehicle, the financier cannot be made liable. Admittedly, the cheque in question was issued by the accused and when the same was tendered for collection, not honoured, only at the instance of the petitioner, namely, he has issued a notice to the bank not to honour the cheque, thereby further knowing that he had the knowledge about the notice, as well as the fact that the notice was issued only demanding the payment, for the dishonoured cheque bearing No.900889 dated 15.12.2001. In this view also, I find no merit of any kind, for quashing the proceedings. With the above observations, the petition is dismissed. Connected Crl.M.Ps. are closed.