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2008 DIGILAW 1004 (MAD)

V. Narasimhan v. D. Saravanan

2008-03-20

P.R.SHIVAKUMAR

body2008
Judgment :- There is no representation on either side. Hence orders are passed after perusing the materials available on record. 2. The present petition has been filed under Section 482 Criminal Procedure Code for quashing the complaint preferred by the respondent herein against the petitioner for an offence punishable under Section 138 of the Negotiable Instruments Act. 3. According to the respondent/complainant, the petitioner herein borrowed a sum of Rs.36,190/- as a hand loan from the respondent herein in the month of January 2004 and agreed to repay the same within six months. Subsequently, in the month of June 2004, in discharge of the above said debt, three cheques were issued on 04.06.2004, 08.06.2004 and 14.06.2004 for Rs.12,000/-, Rs.12,000/- and Rs.12,190/- respectively. The number of the first cheque dated 04.06.2004 was 435882, the number of the second cheque dated 04.06.2004 was 435883 and the number of the third cheque dated 04.06.2004 was 435884. All the three cheques were drawn on Indian Overseas Bank, Ponneri branch in respect of the account maintained by the petitioner herein. When the same were presented for collection through the banker of the respondent/complainant, namely Canara Bank, Vengal, they were returned unpaid on 210. 2004 with an endorsement "insufficient funds". After issuing necessary statutory notice calling upon the petitioner to make payment towards the cheque amount and waiting for the statutory period to expire, the respondent/complainant approached the court by way of a private complaint since payment was not made as demanded in the notice. After recording the sworn statement of the respondent/complainant, the same was taken on file by the Judicial Magistrate No.1, Ponneri, as C.C.No.33 of 2005 and summons were issued. 4. At the said stage, the petitioner has chosen to approach this court by way of the present petition for quashing complaint on various grounds set out in the petition. The petitioner has narrated the story of the plight of M/s. Kaligambal & Co., of which he claims to be a partner and contended that the cheques in question were not issued by the petitioner in favour of the respondent herein in respect of any debt or liability owed by the petitioner towards the respondent. The petitioner has narrated the story of the plight of M/s. Kaligambal & Co., of which he claims to be a partner and contended that the cheques in question were not issued by the petitioner in favour of the respondent herein in respect of any debt or liability owed by the petitioner towards the respondent. The further contention of the petitioner is that due to the closure of the business of the above said Kaligambal & Co., whose account was freezed by the District Crime Branch, Tiruvallur pursuant to complaints made by the public (investors) under the provisions of the Tamil Nadu Chit Funds Act and provisions of Tamil Nadu Protection of Interest of Depositors Act, the present petition was made to issue the above said cheques altogether for a total sum of Rs.36,190/- and that hence the said cheques could not be construed to be the cheques issued in discharge of any debt or liability of the petitioner herein. 5. It is pertinent to note the specific case of the respondent/complainant that the petitioner herein obtained a hand loan of Rs.36,190/-in the month of January 2004 and issued the cheques in question for the discharge of the above said hand loan. When such clear and unambiguous plea has been made in the complaint, the same cannot be quashed based on the plea of the petitioner herein to the effect that the said cheques were issued by him only for settling the amount due from Kaligambal & Co., towards the chit business the said concern was running. Even otherwise the petitioner has candidly admitted he was one of the partners of the above said firm, which was running the chit business and the cheques in question were issued by him in settlement of the liability of the said partnership firm towards the respondent herein. Even assuming that the cheques were issued towards the settlement of the claim made by the Respondent against the Kaligambal & Co., the said plea made by the petitioner will amount to an admission that the cheques were issued in discharge of a liability. 6. Moreover, in view of the specific stand taken by the respondent / complainant that the cheques were issued in discharge of the hand loan availed by the petitioner herein, it shall not be proper for the court to accept the contention of the petitioner at this stage and quash the complaint. 6. Moreover, in view of the specific stand taken by the respondent / complainant that the cheques were issued in discharge of the hand loan availed by the petitioner herein, it shall not be proper for the court to accept the contention of the petitioner at this stage and quash the complaint. At best, the present stand taken by the petitioner may be a ground of defence that can be taken in the trial of the case before the Judicial Magistrate concerned. 7. For all the reasons stated above, this court is of the considered view that the petitioner has miserably failed to make out a case for quashing the complaint and that the petition deserves to be dismissed. Accordingly the same is dismissed.