N.Sundar v. Sridhar Roadwas by Proprietor T.P.Thangaraj, Wallajapet, Vellore

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 06.08.2009CORAM:THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESANCrl.OP.No.5421/2003Cr.MP.No.1951/20031.N.Sundar2.K.RajkumarPetitioners Vs1.Sridhar Roadwas by Proprietor T.P.Thangaraj, Wallajapet, Vellore2.Anjali Enterprises, Chennai-23.S.VenkataramanRespondents4.Prayer:- This Criminal Original Petition is filed to call for therecords and quash the proceedings in CC.No.245/2001 on the file ofthe Judicial Magistrate II, Wallajapet, Vellore District.For Petitioner:Mr.A.AnbarasuFor Respondent :Mr.V.K.RajagopalanORDER The Petitioners, who are arrayed as A2 and A3, have filedthis Criminal Original Petition to quash the complaint inCC.No.245/2001 on the file of the Judicial Magistrate II,Wallajapet, Vellore District.2. According to the averments made in the complaint, A1is the Company by name M/s.Anjali Enterprises, who is the 2ndRespondent herein and A2 to A4 are the partners of the A1 Company.The 1st Respondent/ complainant had business transaction with theaccused and as per the accounts, the accused were liable to pay asum of Rs.1,53,800/- to the complainant. In discharge of the saidamount, the accused issued a cheque bearing No.026372 dated18.7.2001 to the complainant for a sum of Rs.1,53,800/- drawn onM/s.Lakshmi Vilas Bank Limited. The complainant presented thesaid cheque for collection through the Indian Bank, Vellore on18.7.2001, but the said cheque was returned on 26.7.2001, statingthat the cheque could not be honoured due to closing of theaccount. https://hcservices.ecourts.gov.in/hcservices/

3. It has been specifically averred in the complaint thatthe A2 to A4 are the partners of A1 Company and they were incharge of and responsible for the conduct of the business of theCompany. Since the accused failed to pay the cheque amount, thecomplaint has been filed by the 1st Respondent/complainant.4. The main contention of the Petitioners is that therewas no business transaction between the Petitioners andcomplainant and therefore, there was no legally enforceable debtmuch less Rs.1,53,800/- payable by the Petitioners to the 1stRespondent. The Petitioners have also challenged the noticeissued by the 1st Respondent on the ground that it is not inconsonance with Section 138 of the Negotiable Instruments Act. Itis further submitted by the Petitioners that the Partnership Firmwas dissolved orally with the consent of all the partners and theFirm became non existent from the end of September 1999 andtherefore, the cheque dated 18.7.2001 could not have been issuedby the third accused.5. At the outset, it is to be noted that both thePetitioners have filed a petition before the learned Magistrateto drop the proceedings against them, raising the same contentionsbefore the learned Magistrate, who in turn has dismissed thepetition on the ground that all those contentions could be raisedonly at the time of trial. Admittedly, they have not filed anyrevision as against this order. 6. It is well settled that except in very exceptionalcircumstances, the court would not look into any document reliedon by the accused in support of his defence and while exercisingjurisdiction under Section 482 of Code of Criminal Procedure, thiscourt is required to consider only as to whether the allegationsmade in the complaint fulfill the ingredients of the offencealleged against the accused. 7. Under Section 139 of the Negotiable Instruments Act,the court has to presume unless contrary is proved that the holderof the cheque had received the cheque for discharge in whole orpart of a debt or liability. However, the burden of proving thatthe cheque has not been issued for a debt or liability is on theaccused. In the case of K.N.Beena Vs. Muniyappan and another[2001-8-SCC-458], the Honourable Supreme Court has held that inview of the provisions contained in Sections 118 and 139 of theNegotiable Instruments Act, the court has to presume that thecheques had been issued for discharging the debt or liability,however, the said presumption could be refuted by the accused byproving in the trial. It further held on facts that mere denialor refutal by the accused in reply to the legal notice sent by thecomplainant is not sufficient and the accused has to prove bycogent evidence that there was no liability or debt.8. In the present case, though the Petitioners have https://hcservices.ecourts.gov.in/hcservices/ contended that there was no legally enforceable debt or liabilityand the cheque has not been issued by the 3rd accused, the samecannot be decided at this stage and it is for the Petitioners toprove that there was no legally enforceable debt or liability byletting in evidence. 9. The other contention raised by the learned counsel forthe Petitioners is that there was no proper notice as contemplatedunder proviso to clause (b) of Section 138 of the NegotiableInstruments Act and no averment is there in the complaint as towhether the notice was served on the Petitioner and therefore itcannot be said that there was a cause of action for the complaint.10. On a perusal of the certified copy of the complaint,it is seen that there is an averment in the complaint to theeffect that the cheque was presented for collection on 18.7.2001,was returned on the same day and the same was intimated to thecomplainant on 26.7.2001 by the Indian Bank, Wallajapet. It isstated that the complainant has sent the notice to the accused on7.8.2001 and received the reply from the Petitioners on 18.8.2001.It could be presumed that the notice of demand had been served onthe Petitioners.11. Section 138(b) of the Negotiable Instruments Actstipulates that the payee or the holder in due course of thecheque as the case may be should make a demand for the payment ofthe said amount of money by giving a notice in writing to thedrawer of the cheque within 15 days of the receipt of theinformation by him from the bank regarding the return of thecheque as unpaid. In this case, the Respondent issued the noticewell within time as contemplated under Section 138(b) of theNegotiable Instruments Act. The above said legal requirement hasbeen complied with by the 1st Respondent. It is prima facie seenthat there is issuance of the cheque, non payment thereon onpresentation, issuance of valid notice, calling upon the drawer ofthe cheque to pay the amount in question and the Petitioners'failure to pay to the complainant the amount in question within 15days from the receipt of the notice served upon them and the causeof action had arisen for filing the complaint. Hence, there is nomerit in this Criminal Original Petition and accordingly, it isdismissed. No costs. Consequently, the connected MP is closed. Sd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ Srcm To:1.The Judicial Magistrate II, Wallajapet, Vellore District+1cc to Mr.V.K.Rajagopalan, Advocate Sr 36200TEJ(CO)km/14.8.Crl.OP.No.5421/2003