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2015 DIGILAW 3445 (MAD)

C. Dhayabaran Chairman v. S. Sarles

2015-10-16

R.MALA

body2015
ORDER : The petitioner, who is an accused in S.T.C.No.260 of 2014 on the file of the learned Judicial Magistrate -Fast Track Court No.1 (Magisterial level) Nagercoil, would submit that the respondent herein has filed a complaint under Section 200 Cr. P.C for an offence under Section 138 of Negotiable Instruments Act, stating that the petitioner herein, in order to discharge his liability, issued a cheque, which, on presentation for encashment, was returned with an endorsement 'insufficient funds'. 2. The learned Counsel appearing for the petitioner submits that the petitioner has borrowed a sum of Rs.3,50,000/- on 10.05.2013 for the purpose of his College's improvement and the petitioner has also issued a cheque bearing No.532688 dated 17.10.2013. The respondent has presented the same for collection on 17.10.2013 and the same was returned for the reason "Funds insufficient" on 21.10.2013. An intimation was received on 23.10.2013. Hence, the respondent has sent a demand notice to the petitioner and the same was received by the petitioner on 11.11.2013. Furthermore, the amount has been repaid. Hence, he prays for quashment of the case. He further submits that there was a material alteration in the document to the effect that S. Sarles' name is written in different ink. 3. The learned Counsel appearing for the respondent submits that even though the statutory notice has been issued the petitioner has not replied. Hence, he prays for dismissal of the petition. 4. As per the provisions of Negotiable Instruments Act, 1881, the holder is entitled to invoke presumption and the question as to whether the name of S. Charles or C. Prabhu has been written in the instrument in different ink can be gone into only at the time of trial. 5. The point raised by the petitioner is that he has issued a cheque only in favour of one C.R. Prabhu and the said name has not been filled up. Whereas S. Sarles name is written in different ink. 6. After issuing a statutory notice, the complainant filed a complainant against the accused. 5. The point raised by the petitioner is that he has issued a cheque only in favour of one C.R. Prabhu and the said name has not been filled up. Whereas S. Sarles name is written in different ink. 6. After issuing a statutory notice, the complainant filed a complainant against the accused. The petitioner/accused has raised the following points for quashing the cases:- a) That cheque has not been given to the respondent/complainant that has been given to one C.R. Prabhu; b) Date of borrowel has not been mentioned c) Even though the statutory notice has been issued under Section 138 of Negotiable Instruments Act, that has not been received by him, since he has been receiving so many correspondences from various educational institutions. Though the notice has been addressed to the Chairman, it was received by the staff and the same was not placed before him. Hence, he is unable to give a reply. With the above reasons, he prays for quash the same. 7. Resisting the same, the learned Counsel appearing for the respondent submits that the petitioner has borrowed money and notice was also sent with all details as stated in the complaint. Non mentioning the date of borrowal will not vitiate the proceedings. He further submits that it is a duty of the petitioner to prove as to whether the cheque has been issued to C.R. Prabhu only at the time of trial and it is only the question of facts. He further submits that since the amount borrowed by the Chairman, there is no necessity for impleading him in an individual capacity and therefore notice has been sent to the Sun College of Engineering and Technology, rep. by its Chairman, which was also received by him. Hence, he prays for the dismissal of the petitions. 8. Considering the rival submissions and on perusal of the typed set of papers, it is seen that admittedly, the petitioner is the Chairman of the College and the cheque has been signed by the petitioner as Chairman of the College. The Negotiable Instruments Act is a special enactment. In that it was specifically mentioned once the issuance of cheque and the signature in the cheque have been admitted, there shall be a presumption available in favour of the holder of the cheque under Section 139 of the Negotiable Instruments Act. The Negotiable Instruments Act is a special enactment. In that it was specifically mentioned once the issuance of cheque and the signature in the cheque have been admitted, there shall be a presumption available in favour of the holder of the cheque under Section 139 of the Negotiable Instruments Act. It is true that the presumption under Section 139 of Negotiable Instruments Act, is rebuttable presumption and the burden is shifted to the shoulders of the respondent to prove that the cheque has been issued for legally liable. The question as to whether the cheque has been issued to C.R. Prabhu or issued to discharge the liability can be decided only at the time of trial. It is not a ground to quash the same. 9. The learned counsel for the petitioner submitted that it is necessary that the notice must contain the particulars regarding the date of cheque, date of return as contemplated under Section 138 of the Negotiable Instruments Act. 10. The learned Counsel for the respondent submits that C. Dhayaparan has not been impleaded personally and hence, he prayed for dismissal of the petitions. Admittedly, C. Dhayaparan is the Chairman of the College and borrowed money. In such circumstances, non-impleading of the person in an individual capacity is not fatal. It is true that reply to the notice is not mandatory. The explanation is not accepted because of the acknowledgement card and the seal of the college has been mentioned there. In such circumstances, I do not find any reason to quash the cases. 11. Accordingly, this criminal original petition is dismissed. The learned Judicial Magistrate Fast Track Court (Magisterial level) No.I, Nagercoil is directed to dispose of the S.T.C cases mentioned above within a period of six months from the date of receipt of a copy of this order. 12. At this juncture, the learned Counsel appearing for the petitioner seeks permission to dispense with the personal appearance of the petitioner before the Court. Hence, the learned Judicial Magistrate Fast Track Court (Magisterial level) No.I, Nagercoil is directed to consider the request of the petitioner to dispense with the appearance of the petitioner on filing necessary application and pass orders on the same on merits. Consequently, the connected miscellaneous petitions are also dismissed.