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2007 DIGILAW 1174 (MAD)

Pandian Tractors v. S. Jeevarathnakumar

2007-04-02

G.RAJASURIA

body2007
Judgment :- This petition has been filed to call for the records in S.T.C.No.1469 of 2006 on the file of the learned Judicial Magistrate No.2, Madurai and quash the same. 2. Thefacts in nut shell absolutely necessary for the disposal of this petition would run thus: The respondent herein preferred a complaint before the learned Judicial Magistrate No.2, Madurai, for the offences punishable under Section 138 of the Negotiable Instruments Act as against the petitioners herein who have been arrayed as accused therein. 3. Being aggrieved by and dissatisfied with such filing of the complaint by the respondent herein, the accused have filed this petition challenging the maintainability of that petition and for quashment. 4. The nitty-gritty of the case of the accused in this petition is that the very complainant was a partner in the accused partnership; in view of the close relationship which existed previously between the petitioners and the complainant/respondent herein, when the latter asked for lending loan, the former without insisting for formality had chosen to lend loan and thereupon only, the two impugned cheques came to be issued. At the time of executing those cheques, normally the respondent herein ought to have executed two promissory notes in consideration of the cheque amounts by way of securing the prompt repayment, but that was not insisted upon as a condition precedent for issuing cheques, because of the said close relationship, which existed at that time. However, the complainant executed a receipt dated 15.05.2006 vouching the factum of he having received the two impugned cheques by way of borrowal of the loan from the accused partnership. 5. Subsequently, the respondent turned turtle and he had a volte face and virtually defrauded the accused by refusing to execute two promissory notes. On the other hand, a complaint was filed as though there was a pre-existing debt due payable by the petitioners herein in favour of the complainant and that is why the accused persons are before this Court for quashment. 6. Per contra, gainsaying and denying, contradicting and disputing the allegations/averments of the petitioners/accused, the respondent/complainant would detail and delineate, express and expatiate his case as under: There was a pre-existing debt as the same was borrowed by the accused for their tractor business and subsequently, they failed to pay and thereupon only the impugned cheques were executed by them. 6. Per contra, gainsaying and denying, contradicting and disputing the allegations/averments of the petitioners/accused, the respondent/complainant would detail and delineate, express and expatiate his case as under: There was a pre-existing debt as the same was borrowed by the accused for their tractor business and subsequently, they failed to pay and thereupon only the impugned cheques were executed by them. Over and above that the learned Counsel for the petitioners would submit that the receipt dated 15.05.2006, a copy of which has been filed along with this typed set on the side of the petitioner, is a forged one and does not contain the signature of the respondent/complainant. 7. Now, the core question arises as to whether quashment is possible? 8. It is a trait proposition of law that on technical grounds and also that if the very complaint is antithetical to law, then only this Court by invoking the power under Section 482 Cr.P.C., could quash it. In response to the question posed by this Court as to whether in the reply notice dated 15.07.2006 issued by the accused, to the complainant, any reference is made about this receipt dated 15.05.2006, the learned Counsel for the petitioner would try to explain that even though in very many words it was not stated so, the substance was incorporated in that reply notice, for which the learned Counsel for the petitioners would take exception and submit that such reference if it had been made in the reply, he would have given rejoinder. 9. At this juncture, I would like to express my considered opinion that if the receipt dated 15.05.2006 is found to be genuine one beyond all reasonable doubts, the quashment would be the inevitable result, because the receipt could indicate the two impugned cheques emerged by way of loan from the complainant and it is not for any pre-existing debt. 10. The learned Counsel for the respondent would convincingly argue that these are factual issues which could be considered after due cross-examination of witnesses only before the trial Court and this Court while exercising its power under Section 482 Cr.P.C would not be in a position to deal with all those aspects. 10. The learned Counsel for the respondent would convincingly argue that these are factual issues which could be considered after due cross-examination of witnesses only before the trial Court and this Court while exercising its power under Section 482 Cr.P.C would not be in a position to deal with all those aspects. In this factual matrix, I do not think that this is a fit case for invoking the power of this Court under section 482 Cr.P.C. However, the trial Court is expected to concentrate much on the receipt dated 15.05.2006. The learned Counsel for the petitioners would also argue that only two partners namely A.2 and A.3 signed the cheques and in such a case, all other partners are not at all necessary parties and as against them, the complaint could be quashed. Once again, I would make it clear that this is based on facts and apparently, in the case if minor or any one other sleeping partner is there, then by invoking the power under section 482 Cr.P.C, the complaint as against them could be quashed. But, that is not the case here. 11. Hence, in view of my above discussion, this petition is dismissed. Consequently, connected M.P. (MD).Nos.1 and 2 of 2007 are also dismissed. However, the trial Court shall do well to see that the matter is disposed of within three months from the date of receipt of a copy of this order and report compliance.