V.Kalpana v. Malarvizhi

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 01.07.2009CORAM:THE HONOURABLE MR. JUSTICE P.R.SHIVAKUMARCRL.O.P.No.3755 of 2009 and M.P.No.1 of 2009V.Kalpana .. Petitioner/AccusedVs.Malarvizhi .. Respondent/ComplainantPRAYER: Criminal Original Petition filed under Section 482Cr.P.C. to call for the records in C.C.No.46/2007 on the file ofthe Judicial Magistrate V, Vellore and to quash the same. For Petitioner : Mr.J.Kathiresan ORDERThe accused in C.C.No.46/2007 on the file of the learnedJudicial Magistrate No.V, Vellore has come forward with the presentpetition under Section 482 Cr.P.C for quashing the above saidcriminal proceedings.2. The submissions made by Mr.J.Kathiresan, learned counselfor the petitioner were heard. The petition and the documentsproduced along with the petition were also perused.3. The above said case, namely C.C.No.46/2007 was institutedon the file of the learned Judicial Magistrate No.V, Velloreagainst the petitioner herein based on the complaint of therespondent herein preferred under Section 200 Cr.P.C for an allegedoffence punishable under Section 138 of the Negotiable InstrumentsAct, 1881.4. The petitioner has come forward with the present petitionfor quashing the above said criminal proceedings initiated againsther on the ground that the complaint itself is an abuse of processof court. It is the contention of the petitioner that therespondent herein, as a client of the petitioner, used to visitpetitioner's house regularly; that the petitioner's husband isrunning a primary school; that her cheque book and the schooldocuments were missing from 22.09.2006 and she preferred acomplaint on the file of Pallikonda Police Station, Velloredistrict informing the same to the police; that after https://hcservices.ecourts.gov.in/hcservices/ investigation, she was issued a 'not traceable' certificate on30.09.2006; that thereafter she received a lawyer's notice onbehalf of the respondent herein, as if she had given a cheque for asum of Rs.50,000/- and the same was dishonoured when presented forencashment and that only thereafter she came to know that thecheque book and the school documents would have been stolen by therespondent herein. It is the further contention of the petitionerthat though a 'not-traceable' certificate was issued on 30.09.2006itself, she again preferred a complaint against the respondentherein and her husband Palani for the theft of the cheque book andschool documents; that she had to approach this court by way of apetition in Crl.O.P.No.7525/2007 to get an order on 20.03.2007directing the police to register a case and investigate the same inaccordance with law and that only pursuant to the said direction, acase was registered against the respondent herein and her husbandin Cr.No.134 of 2007 on the file of Pallikonda Police Station. Itis the further contention of the petitioner that one of the chequeleaves detached from the cheque book stolen by the respondent wasfilled up, presented for collection and a case has been institutedafter complying with the formalities of instituting a privatecomplaint for an offence punishable under Section 138 of theNegotiable Instruments Act, 1881. According to the petitioner thecomplaint is nothing but an abuse of process of court.5. This court, upon hearing the submissions made by thelearned counsel for the petitioner in respect of the above saidcontentions raised by the petitioner in this petition and afterperusing the petition and the documents filed along with thepetition in the form of a typed set of papers, comes to theconclusion that all the allegations made by the petitioner in thepetition can be raised as plea of defence before the trial courtand that they cannot be the grounds on which the complaint itselfcan be put to death at the threshold, as they touch the merits ofthe case. No procedural irregularity has been alleged in thepetition. 6. It is not in dispute that the cheque in question pertainsto the account maintained by the petitioner in her bank. It isalso not in dispute that the cheque contains her signature. It isalso not in dispute that the said cheque, when presented forencashment was returned unpaid with a dishonour note "fundsinsufficient". Statutory notice was also given within the timeprescribed by the statute. The complaint has been preferred aftera period of 15 days from the date of receipt of statutory noticereceived by the petitioner herein. Therefore, no procedural defectcan be found in the institution of the case on private complaint.It is also not the case of the petitioner that the averments foundin the complaint are not enough to disclose the commission of anoffence punishable under Section 138 of the Negotiable InstrumentsAct. On the other hand, she has come forward with a plea thatthere was foul play on the part of the respondent herein and thecomplaint itself has been preferred based on a stolen cheque leaf. https://hcservices.ecourts.gov.in/hcservices/ As pointed out supra, the said contention, can at best be raised asa plea of defence before the trial court and cannot be the basis onwhich the petitioner can seek quashing of the complaint unless moreconcrete materials are placed.7. The petitioner relies on the documents produced as copiesof a complaint lodged with Pallikonda Police Station on 22.09.2006and a "not traceable" certificate issued by the police on30.09.2006. The petitioner is an advocate. She knows very wellthe consequences that may flow, if a missing cheque book comes inthe hands of other persons. Therefore, it is quite improbable thatthe petitioner would have kept the cheque leaves signed. Secondly,if at all such signed cheque leaves were found missing, besidesgiving a complaint to the police, she would not have forgotten togive instructions to her banker not to honour such cheque/cheques,if presented for collection. In fact the cheque numbers have beenfurnished in the alleged complaint given to the police on22.09.2006. Therefore, the petitioner cannot state that she hadforgotten the numbers of the cheque leaves and hence she was notable to instruct the bankers, with required particulars, not tohonour the cheque/cheques, if presented for encashment. 8. Apart from the same, the complaint stating that a chequebook containing 18 cheque leaves was missing, is said to have beenlodged with Pallikonda Police Station on 22.09.2006. No case wasregistered and no receipt was given. The petitioner has notproduced any receipt to show that such a complaint was lodged.However, she was able to obtain a certificate from the Sub-Inspector of Police, Pallikonda Police Station on 30.09.2006 to theeffect that the missing articles could not be traced. Within aspan of 7 days, the Sub-Inspector of Police gave such a 'nottraceable' certificate. Such a certificate does not contain eithera crime number or CSR number or the particulars of the receiptissued for the complaint. Therefore, there is possibility ofholding that the petitioner, being an advocate, could have exertedinfluence with the Sub-Inspector of Police and obtained such acertificate. Even after obtaining such a "not traceable"certificate from the police, the petitioner has not chosen to issueany instruction to the bank not to honour those cheques, ifpresented for encashment. That itself will make it possible to makean inference that the complaint and the certificate could have beencreated antedating the same after the statutory notice was issuedby the respondent to the petitioner herein. 9. The statutory notice under Section 138(b) was issued by therespondent on 09.02.2007. It was admittedly received by thepetitioner on 13.02.2007. Though the petitioner has stated that asuitable reply was sent, the petitioner has not enclosed any copyof such reply notice. On the other hand, the petitioner has chosento lodge a complaint with the Inspector of Police, Pallikondapolice station on 03.03.2007. Immediately thereafter she approachedthis court by way of a petition under Section 482 Cr.P.C in https://hcservices.ecourts.gov.in/hcservices/ Crl.O.P.7525/2007 and obtained an order directing registration of acase based on such complaint. Only thereafter a case wasregistered on the file of Pallikonda police station inCr.No.134/2007 for an offence under Section 380 IPC against therespondent herein and her husband. All those documents have beenbrought into existence only after the receipt of the statutorynotice issued by the respondent herein. Whether those documentsare genuine or were created for the purpose of defending the casepreferred by the respondent herein against the petitioner hereinfor an offence under Section 138 of the Negotiable Instruments Act,has got to be tried and decided. Those documents are not clinchingdocuments to come to the conclusion that the criminal case wasinstituted against the petitioner based on a stolen cheque leaf.The said contention of the petitioner should be canvassed as a pleaof defence in the criminal case instituted against her. Theimprobabilities of the contentions raised by the petitioner hereinhas been highlighted only to show that the same cannot be theground on which the complaint itself can be quashed. Thepetitioner has not proved that the institution of the case againsther for an offence under Section 138 of the Negotiable InstrumentsAct was an abuse of process of court.10. For all the reasons stated above, this court comes to theconclusion that the petitioner has not made out a case for quashingof the criminal proceedings against her instituted on privatecomplaint for an alleged offence punishable under Section 138 ofthe Negotiable Instruments Act and that this petition deserves tobe dismissed, even without notice to the respondent.11. In the result, this petition is dismissed. However, byway of abundant caution, it is made clear that any observation madein this order shall not be construed to be a view expressed on themerits of the case. The trial court shall consider the case on itsown merit without being influenced by any of the observations madeherein.Sd/Asst.Registrar/true copy/Sub Asst.Registrarasr/To1. The Judicial Magistrate V, Vellore.2. -do- Through The Chief Judicial Magistrate, Vellore. CRL.O.P.No.3755 of 2009 RSY(CO)RVL 21.07.2009