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2009 DIGILAW 2139 (MAD)

Thirumoorthy v. S. Govindaraj

2009-07-06

C.S.KARNAN

body2009
Judgment :- This petition has been filed under Section 482 Cr.P.C by the petitioner herein who is the accused in C.C.No.375 of 2005, on the file of the Judicial Magistrate-III, Coimbatore praying to quash the proceedings therein. 2. The facts leading to the filing of the complaint are as follows: The petitioner herein approached the respondent herein on 02.01.2004 and borrowed Rs.80,000/- as hand loan. The respondent herein contacted the petitioner on 25.03.2004 and demanded repayment of the borrowed amount. The petitioner herein issued a cheque bearing No.788407 drawn on South Indian Bank, CMS Higher Secondary School extension counter, Coimbatore, dated 26.03.2004 at the complainants house, in the presence of one R.Raja, who is known both to the complainant and the accused. When the respondent/complainant presented the cheque through his bankers for collection, the said cheque was dishonoured for the reasons, "Fund insufficient, and signature forged. The respondent/complainant therefore issued a legal notice demanding payment, on 31.03.2004 by registered post to the petitioner/accused. The petitioner herein purposely refused to receive the legal notice and hence the notice was returned unserved on 05.04.2004. The respondent/complainant therefore sent a legal notice by Certificate of Postings on 05.04.2004. The petitioner/accused received the same but neither sent a reply for it nor settled the borrowed amount. The respondent therefore states that the cheque was issued by the petitioner herein without sufficient funds in the account and with an intention to cheat him. It is further alleged by the complainant that the petitioner herein instead of subscribing his signature in the usual way signed the cheque in a different manner, and hence, the petitioner has committed an offence under Section 138 r/w.148 of the Negotiable Instruments Act and also under Section 420 IPC. 3. After receipt of this complaint, the learned Magistrate examined the complainant and recorded his own statement on 24.03.2005. On 31.03.2005, the learned Magistrate, holding that when the cheque has been returned for the reason of forged signature, the offence under Section 138 of Negotiable Instruments Act is not attracted, took the complaint on file under Sections 465 and 420 IPC and ordered issue of summons to the accused. 4. On 31.03.2005, the learned Magistrate, holding that when the cheque has been returned for the reason of forged signature, the offence under Section 138 of Negotiable Instruments Act is not attracted, took the complaint on file under Sections 465 and 420 IPC and ordered issue of summons to the accused. 4. It is the contention of the petitioner/accused that the learned Magistrate has come to the conclusion that when the offence under Section 138 of Negotiable Instruments Act is not made out he has wrongly held that prima facie the complaint make out offences under Sections 465 and 420 IPC., without considering and properly discussing the averments contained in the complaint. It is his further contention that the ingredients for the offences of cheating and forgery are not made out and hence the learned Magistrate should have dismissed the complaint in toto. The petitioner therefore states that the order of the Magistrate, taking the complaint on file under Sections 465 and 420 IPC against the petitioner is arbitrary, illegal and unsustainable and hence liable to be quashed. 5. When the matter came up for hearing today, the respondent was called absent. The arguments of the learned counsel for the petitioner were heard. 6. I have carefully perused the averments in the complaint, the sworn statement recorded from the complainant by the learned Magistrate on 24.03.2005 and also the order passed by the court below on 31.03.2005. The learned Magistrate was of the view that if only the signature found in the cheque is genuine and tallied with the usual signature of the accused, then only an offence under Section 138 of the Negotiable Instruments Act can be set to be made out; and when the signature in the cheque itself is forged, the averments in the complaint make out an offence only under Section 465 for forgery and 420 for cheating and thereafter only he has ordered issue of summons to the petitioner/accused. I am satisfied that while taking the complaint on file, the Magistrate has applied his judicial mind in framing charges. The petitioner/accused herein can very well defend the charges against him before the Court below by adducing proper oral and documentary evidence. 7. The complaint, prima facie make out the offences under Sections 465 and 420 IPC and hence this Court exercising jurisdiction under Section 482 Cr.P.C cannot straighaway quash the proceedings at this stage. 8. The petitioner/accused herein can very well defend the charges against him before the Court below by adducing proper oral and documentary evidence. 7. The complaint, prima facie make out the offences under Sections 465 and 420 IPC and hence this Court exercising jurisdiction under Section 482 Cr.P.C cannot straighaway quash the proceedings at this stage. 8. In the result, the Criminal Original Petition is dismissed. As the case is of the year 2005, the learned Magistrate is directed to give top priority to this case and dispose of this case on his file within a period of six months from the date of receipt of a copy of this order in his Court. The Criminal M.Ps. 8848 and 8849 of 2005 are dismissed as unnecessary.