M. Ramachandran v. M/s. Arun Agencies

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 28.08.2009CORAM:THE HONOURABLE MR.JUSTICE C.S.KARNANCrl.O.P.No.17617 of 2007and M.P. 1 of 2007M. Ramachandran.. Petitioner.VersusM/s. Arun Agencies,represented by its Proprietor,Mr.S.Gurusamy... Respondent Petition filed under Section 482 Cr.P.C to call for the recordsand quash the complaint dated 01.08.2005 in STC No.636 of 2007pending before the Judicial Magistrate No.I, Coimbatore. For Petitioner : Mr.R.Balasubramanian For Respondent : Mr.P.T.PerumalO R D E RThe above Criminal Original Petition has been filed by thepetitioner to call for the Records in STC No.636 of 2007 pending onthe file of the Judicial Magistrate I, Coimbatore and quash the same.2.The short ingredients of the complaint is stated asfollows:- The complainant, namely, M/s. Arun Agencies, represented byits proprietor filed STC.No.636 of 2007 an alleged offence underSections 138, 141 and 142 of the Negotiable Instruments Act. The accused has borrowed a sum of Rupees fifteen lakhs ie., acheque bearing No.343069 dated 01.07.2002 for a sum of Rs.10 lakhs infavour of accused drawn on Indian Bank, Trichy road branch,Coimbatore and a sum of Rs.5 lakhs by way of cash dated 02.07.2002.For the said amount, the accused executed an on demand promissorynote in favour of the complainant. https://hcservices.ecourts.gov.in/hcservices/

3.The said amount along with interest was not repaid by theaccused. So, the accused issued a post dated cheque bearingNo.791109 dated 08.04.2005 for Rs.16,82,000 drawn in favour of thecomplainant on the Indian Overseas Bank, R.S.Puram Branch,Coimbatore. The complainant presented the cheque for collection on05.06.2005 through his banker, Indian Bank, Trichy Road Branch,Coimbatore. The said cheque was dishonoured with an endorsement,"Funds insufficient". The same was informed to the accused person byway of Legal notice. The same was received by the accused and hesent a reply to the complainant also. Therefore, the complainantfiled the complaint against the accused person for an alleged offenceunder Section 138 of Negotiable Instruments Act and under Section 415and Section 420 of I.P.C. Along with the said complaint, thecomplainant has mentioned 3 witnesses, including complainant andlisted 6 documents as exhibits.4.The Learned Magistrate has taken the case on his file andissued summons to the petitioner/accused herein.5.Now, the accused/petitioner herein has filed the aboveCriminal Original Petition to quash the complaint on the followingpoints.The petitioner has alleged that the Respondent is known to himfor the past several years and he was looking after the entireaffairs of the petitioner's business at Coimbatore. So, thepetitioner relied on him and even went to the extent of entrustingthe cheques. Further, the petitioner has alleged that due to somecivil dispute regarding compensation to tenants, the petitioner gave2 cheques dated 28.06.2002, one for Rs.15 lakhs and another for Rs.5lakhs. From out of the said amount, the respondent gave a cheque forRs.10 lakhs which was encashed by the petitioner. But the petitionerwas shocked to receive a legal notice from the Respondent dated15.06.2005 as if the petitioner had borrowed a sum of Rs.15 lakhsfrom the respondent on 01.07.2002 for urgent business purpose by wayof cheque and later Rs. 5 lakhs by cash on 02.07.2002 on promissorynote with interest at the rate of 12% per annum. It has been allegedby the respondent that the petitioner had issued a post dated chequebearing No.791109 dated 08.04.2005 for Rs.16,82,000/= drawn on IndianOverseas Bank, R.S.Puram branch, Coimbatore-641002. The petitionercontends that before January 2005, the petitioner had entrusted someblank signed cheques with the respondent and the respondent hadmisused the said cheques.6.Then the petitioner had sent a reply notice and therespondent came for a compromise and returned the original cheque tothe petitioner in the second week of July 2005 and made anendorsement as cancelled in the cheque and settled the matter inamicable manner. Subsequently, the petitioner got a summons from https://hcservices.ecourts.gov.in/hcservices/ the Judicial Magistrate I, Coimbatore dated 26.04.2007 to appear inperson on 26.06.2007 in STC No.636/2007 for an alleged offence underSection 138 of Negotiable Instruments Act. When the petitioner filedfor a copy application, to get certified copy of complaint, cheque,Bank Return Memo vide C.A No.7520 dated 11.06.2007, the saidapplication was returned by the Honourable Court with an endorsement,"Returned, since the original cheque not yet produced in this case.Hence Returned" dated 11.06.2007.7.The petitioner submits that the above complaint had beenfiled on 01.08.2005 with delay of 10 days, even without filing theoriginal cheque. The petitioner is at a loss to understand how thecomplaint was taken on file even without the original cheque, whichthe petitioner alleges is with him. It has been further alleged thatthe said complaint has been returned several times forrepresentation, but the respondent has made an endorsement statingthat he was not able to comply with it since he was in judicialcustody for several other cases.8.Hence the petitioner has alleged that the respondent hadcheated him by criminal breach of trust and misusing his cheque andthat even after compromise, a false complaint has been foisted, thattoo, after a period of 2 years before the learned Judicial MagistrateI, Coimbatore. Hence the petitioner prays for quashing the complaintin STC No.636 of 2007.9.The Learned Counsel for the petitioner argued that as thematter in dispute has been resolved between the parties, the chequehas also been returned to the petitioner/accused. Further, the copyof the said cheque has been filed along with the typed set of papersby the petitioner's counsel. Further, the petitioner's counselshowed the original cheque in the Open Court. The Learned Counselfor the respondent filed typed set of papers and also filed writtenarguments wherein he had cited a judgement in 2005(1) DCR 540, KeralaHigh Court, N. Chitaranjan Vs V. Jayarajan and another.10.Considering all the facts and circumstances of the case,the STC No.636 of 2007 has been filed on the basis of the chequebearing No.791109 dated 08.04.2005 for a sum of Rs.16,82,000/=. Thexerox copy of the cheque showed that the cheque has been cancelled.Further, the Learned Counsel for the petitioner showed the originalcheque in the Open Court. As such, the said cheque issued by thePetitioner is in the possession of the petitioner. This cheque is avitally important document for filing the case in STC No.636 of 2005.The whole case has been cancelled on the basis of the said cheque.Now the said cheque has been cancelled and in the possession of thepetitioner. As such, the STC No.636 of 2005 cannot survive on the https://hcservices.ecourts.gov.in/hcservices/ file of the Learned Judicial Magistrate I, Coimbatore. Hence, theSTC No.636 of 2005 has got to be quashed. Accordingly, it isquashed. The Criminal Original Petition No.17617 of 2007 is allowed.Consequently, connected Miscellaneous Petition is closed. mraSd/-Asst. Registrar//True Copy//Sub Asst. RegistrarTo1.The Judicial Magistrate No.I, Coimbatore. 2.The Chief Judicial Magistrate, Coimbatore.3.The Public Prosecutor, High Court, Madras+ 1 cc to Mr.P.T. Perumal, Advocate SR No.45097KJI(CO)SR/28.10.2009Crl.O.P.No.17617 of 2007and M.P. 1 of 2007