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2022 DIGILAW 1908 (MAD)

R. Ramesh Kumar v. M. Maharaja

2022-07-05

G.K.ILANTHIRAIYAN

body2022
JUDGMENT : (Prayer: Criminal Original petition filed under Section 482 of Code of Criminal Procedure, to call for the records pertaining to the Criminal Proceedings bearing S.T.C.No.495 of 2020 pending on the file of the learned Judicial Magistrate No.1, Salem and quash the same.) This petition has been filed to quash the proceedings in S.T.C.No.495 of 2020 pending on the file of the learned Judicial Magistrate No.1, Salem, thereby taken cognizance for the alleged offence punishable under Section 138 of Negotiable Instrument Act. 2. The respondent lodged a complaint for the offence punishable under Section 138 of Negotiable Instrument Act, alleging that the petitioner and the respondent are friends. Due to their friendship, the petitioner borrowed a sum of Rs.1,75,000/- for his urgent family and business expenses. As per the said request, the respondent arranged a loan in favour of the petitioner herein. In order to repay the said amount, the petitioner issued a cheque for a sum of Rs.1,75,000/- and the same was presented for collection on 05.08.2019. However, it was returned for the reasons -payment stopped by drawer- as per Memo dated 06.08.2019. After execution of statutory notice, the respondent lodged a complaint. 3. Though notice has been served on the respondent and his name is printed in the cause list, there is no representation for the respondent either in person or through counsel. 4. A perusal of the records reveals that the petitioner borrowed a sum of Rs.60,000/- from the respondent’s mother on 19.08.2018 to meet the school fees of the petitioner-s daughter. At the time of availing the loan, the petitioner had given two cheques including the impugned cheque in the present case as security purpose. The petitioner also executed a promissory note in favour of the respondent-s mother. The petitioner has been paying interest regularly to the respondent-s mother without any default. After payment of entire loan amount, the respondent-s mother failed to return the cheque, and as such the petitioner lodged a complaint on 04.08.2019, before the Inspector of Police, Ammapet Police Station. On receipt of the said complaint, the petitioner was issued CSR No.618 of 2019 and the Inspector of Police, Ammapet has been conducted enquiry with the respondent-s mother. Immediately, on 05.08.2019, the respondent filled a cheque in his name and presented it for collection. 5. On receipt of the said complaint, the petitioner was issued CSR No.618 of 2019 and the Inspector of Police, Ammapet has been conducted enquiry with the respondent-s mother. Immediately, on 05.08.2019, the respondent filled a cheque in his name and presented it for collection. 5. In fact, even before that the petitioner issued a letter to his banker not to honour the cheque and stopped the payment. Accordingly, the petitioner-s banker returned the cheque by stopping the payment. On the strength of the returned cheque, the respondent caused statutory notice on 09.08.2019. In fact, on 09.08.2019, the petitioner caused legal notice to the respondent-s mother thereby calling upon her to return the original cheque viz., the impugned cheque, unfilled signed promissory note belonging to the petitioner and a letter of undertaking within a period of seven days from the date of receipt of that legal notice. It was also duly acknowledged by the respondent-s mother. 6. The petitioner also caused a reply notice on the statutory notice issued by the respondent on 18.08.2019. A perusal of the reply notice reveals as follows : 4. My client states that he never issued the cheque in your clients favour and the never promised to pay the interest after the settle the principal amount as averred in your notice does not give any meaning. It itself says there is no money transaction between your client and my client. 5. My client states that at a came look itself that the averments and allegation of your notice are reveals false and it speaks an ulterior motive of your client to cheat my client. 6. My client states that he never issued the cheque No.002386 drawn on ICICI Bank, duly dated 05.08.2019 for an amount of Rs.1,75,000/- (Rupees One Laksh Seventy Five Thousand only) in favour of your client. 7. My client states that the question of promise for honour the above cheque does not arise at any point of time. Further your client believed the words of my client and at his personal request the cheque was presented are all false and denied. It is true the ICICI Bank Cheque No.002386 was dishonoured with an endorsement of “Payment stopped by the drawer”. Further your client believed the words of my client and at his personal request the cheque was presented are all false and denied. It is true the ICICI Bank Cheque No.002386 was dishonoured with an endorsement of “Payment stopped by the drawer”. My client states that the stop payment letter was given to their banker on 31.07.2019 itself and also yet another letter of stop payment was given to cheque No.000059 drawn at HDFC Bank. 8. My client states that the recitals of your notice that your client after knowing the above said fact felt blot and blue is true not because of dishonour of cheque. But his ulterior motive of fraudulent activity of cheating my client for illegal gain was put to an end. 9. My client states that there is no legally enforceable debt and my client states that he is not liable to settle the cheque amount, and the question of committing the offence as contemplated under Section 138 of Negotiable Instrument Act does not arise/attract for the Cheque No.002386 of ICICI Bank and also Cheque No.000059 of HDFC which illegally kept and misappropriated. 10. My client states that your client illegally got my clients cheque and presented the cheque for collection during the pendency of the complaint pending before the -Inspector of Police-, Ammapet, Salem – 636 003. On receipt of your notice dated 09.08.2019 my client came to know the status of the ICICI Bank cheque No.002386 is misappropriated by your client and your client-s mother namely M.Lakshmi, W/o.Late S.K.Manickam with fraudulent intention to cheat my client. 11. My client states that already my client sent a legal notice to your clients mother and the same was received by her. My client states that on receipt of your notice, it is learnt that your client suppressed all facts and truth to you and had given false information to you for their illegal gain”. 7. Thus, it is clear that the cheque was issued as security that too to the mother of the respondent herein. It was unfilled one and as such the respondent filled in his favour and presented the same for collection. That apart, the petitioner also caused public notice in the news daily calling upon the respondent-s mother to hand over the impugned cheques, which were received by her as security purpose and also promissory note executed by the petitioner herein. It was unfilled one and as such the respondent filled in his favour and presented the same for collection. That apart, the petitioner also caused public notice in the news daily calling upon the respondent-s mother to hand over the impugned cheques, which were received by her as security purpose and also promissory note executed by the petitioner herein. All the documents revealed that the impugned cheque was issued by the petitioner for security purpose, while borrowing loan from the respondent-s mother. After repayment of the entire loan amount with interest, the respondent-s mother failed to return the same. Therefore, the entire proceedings initiated as against the petitioner is nothing but a clear abuse of process of law and it cannot sustained as against the petitioner. 8. In view of the above, this Criminal Original Petition stands allowed and the proceedings in STC No.495 of 2020 on the file of the Judicial Magistrate No.I, Salem, is hereby quashed. Consequently, connected miscellaneous petition is closed.