C.Owen Joseph Gilbanks vs Shanmugam
2021 Latest Caselaw 24614 Mad

                                                                                 Crl. O.P. No.22326 of 2017


                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                     Dated 14.12.2021

                                                           CORAM:

                                  THE HONOURABLE MR.JUSTICE N. SATHISH KUMAR

                                           Crl. O.P. No.22326 of 2017 and
                                        Crl.M.P.No.13087 and 13088 of 2017


                 C.Owen Joseph Gilbanks                                        . . . Petitioner

                                                             Versus

                 Shanmugam                                                     . . . Respondent


                 PRAYER : Criminal Original Petition filed under Section 482 Cr.P.C., to
                 call for the records pertaining to S.T.C. No.550 of 2014 by Judicial
                 Magistrate Court, Udhagamandalam and quash the same.


                                    For Petitioner     :   Mr.T.Shanmugam

                                    For Respondent     :   Mr.J.Bharathiraja


                                                           ORDER

This is an application filed under Section 482 Cr.P.C. to quash the

proceedings initiated against the petitioner in S.T.C. No.550 of 2014 on

the file of the learned Judicial Magistrate, Udhagamandalam and quash

the same.

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2. It is the contention of the learned counsel appearing for the

petitioner that the entire proceedings initiated under Section 138 of the

Negotiable Instruments Act, 1881, is not maintainable, as there is no

legally enforceable debt between the petitioner and the respondent. It

is the further contention of the learned counsel for the petitioner that

the cheque in question was issued to one Jawahar and in fact he has

given a receipt accepting the payment and receiving of the cheque.

Therefore, the present complaint is not maintainable.

3. At the outset, I am not able to persuade myself for such

submissions, as it is a matter of evidence. Dislodging the legal

presumption attached to the cheque, the initial onus lies on the drawer

of the cheque. It is for the petitioner to prove the alleged receipt issued

by the so-called Jawahar, before the trial court. Therefore, this court

cannot make any rowing enquiry against the factual aspects, as it is a

matter of evidence before the trial court.

4. At this juncture, the learned counsel appearing for the

petitioner seeks the indulgence of this Court to grant an order

dispensing with the personal appearance of the petitioner. Accordingly,

the personal appearance of the petitioner/Accused before the trial Court

is dispensed with, except for receipt of copies, answering the charges,

questioning under Section 313 Cr.P.C., passing of judgment, or on any https://www.mhc.tn.gov.in/judis Page No:2/4 Crl. O.P. No.22326 of 2017

other date as may be required by the trial Court.

5. Accordingly, the criminal original petition is dismissed.

Consequently, the connected criminal miscellaneous petitions are

closed.

14.12.2021

Index : Yes / No Speaking/non speaking order psa/asr

To

The Judicial Magistrate, Udhagamandalam

https://www.mhc.tn.gov.in/judis Page No:3/4 Crl. O.P. No.22326 of 2017

N. SATHISH KUMAR, J.

psa/asr

Crl. O.P. No.22326 of 2017

14.12.2021

https://www.mhc.tn.gov.in/judis Page No:4/4