Madras High Court
N. Anbarasan vs M.Vairasamy on 19 July, 2021
1 Crl.O.P.Nos.22989 to 22992 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 19.07.2021
CORAM:
THE HONOURABLE MRS. JUSTICE V.BHAVANI SUBBAROYAN
Crl.O.P.Nos. 22989 to 22992 of 2016
and
Crl.M.P.Nos.10777 to 10784 of 2016
N. Anbarasan ... Petitioner/Accused
(in all CrlOPs)
/Vs/
M.Vairasamy ... Respondent/Complainant
(in all CrlOPs)
Common Prayer:
Criminal Original Petitions filed under section 482 of Criminal
Procedure Code, to call for the records in C.C.Nos. 486, 487, 488 and
489 of 2016 on the file of FTC-IV Metropolitan Magistrate, George
Town, Chennai, respectively and to quash all further proceedings.
For Petitioner/Accused : Mr.S. Balasubramanian
(in all CrlOPs)
For Respondent/Complainant : Mr.Liagat Ali
(in all CrlOPs)
----
https://www.mhc.tn.gov.in/judis/
COMMON ORDER
The petitioner has filed the present petitions under Section 482
of the Criminal Procedure Code, to call for the records pertaining to the
case in C.C.Nos. 486, 487, 488 and 489 of 2016 respectively, on the file
of Metropolitan Magistrate, Fast Track Court No.IV, George Town,
Chennai, and to quash the entire proceedings initiated against him.
2. The respondent/complainant filed a criminal complaint
before the learned Metropolitan Magistrate, Fast Track Court No.IV,
George Town, Chennai, against the present accused for an alleged
offence punishable under section 138 of Negotiable Instruments Act,
(hereinafter referred to as the "NI Act") 1881.
3. The case of the respondent/complainant is that the house
property situated at No.417, M.G.R. Street, Bharathi Nagar, Koyambedu,
Chennai - 600 107, is belonged to him for running TASMAC Shop and
attached bar to the TASMAC (Shop Nos.20 & 21). Since there were
some misunderstandings between the petitioner and the respondent, the
petitioner has not paid the rent regularly. The petitioner is a tenant under
the respondent/complainant in respect of a TASMAC Shop with attached
https://www.mhc.tn.gov.in/judis/
bar, and he was paying rent in a sum of Rs.75,000/-per month. The
petitioner/accused had borrowed a sum of Rs.75,000/- from the
respondent on 05.03.2015. It is the further case of the
respondent/complainant that towards the discharge of the amount due to
him, the petitioner/accused issued five cheques bearing Nos.(i) 847249,
(ii) 847251, (iii) 847253, (iv) 847254 and (v) 847255 dated 05.11.2015
for a sum of Rs.75,000/- drawn on Induslnd Bank, Aminjikarai Branch,
Chennai, in favour of the respondent/complainant. When the cheques
were presented for an encashment/realization by the
respondent/complainant herein through his bankers viz., State Bank of
India, Elephant Gate Branch, Chennai, the same was returned for the
reason “insufficient funds” on 07.12.2015. Therefore, the
respondent/complainant issued a statutory notice to the
petitioner/accused on 24.12.2015 and after receiving the legal notice on
26.12.2015, the petitioner/accused had not come forward to pay the said
cheque amount till date. Hence, he has filed the complaint in
C.C..Nos.486, 487, 488 and 489 of 2016 before the Court below under
Section 138 of the NI Act.
https://www.mhc.tn.gov.in/judis/
4. Mr.S.Balasubramanian, the learned counsel appearing for
the petitioner/accused contended that even as per the complaint, the
petitioner/accused borrowed money from the respondent/complainant
and cheque bearing No.847253 was issued for the purpose of payment of
rent for the premises owned by the respondent/complainant. He would
therefore submit that the complaint filed by the respondent under Section
138 of the Negotiable Instruments Act, 1881 is not maintainable.
Without considering the above aspects, the learned Metropolitan
Magistrate, Fast Track Court No.IV, George Town, Chennai, has
committed an error by taking cognizance of the offence under Section
138 of Negotiable Instruments Act, 1881. He relied upon the decision in
the case of Venkatesh Bhat v. Rohidas Shenoy, reported in [(2010)
Crl.L.J. 1061], wherein it has been held in Para No.11 as follows:-
"11. Since the valid execution of Ex.P1
agreement and issue of cheque in question by the
accused to the complainant in terms thereof, are
seriously questioned, findings as to, 'whether the
said agreement was entered into by the accused
with the complainant with his free consent';
'whether he issued the said cheque to the
complainant voluntarily in terms of the recitals in
the said agreement' as contended by the
https://www.mhc.tn.gov.in/judis/
complainant, or 'whether the signatures of the
accused were obtained on the said agreement' and
'whether the said cheque was taken by the
complainant from the accused by exercising
coercion on him', are to be given. As rightly
observed by the Trial Court, findings on these
issues could not be given by it, being the Criminal
Court, and the said findings on the said issues are
to be given by a competent Civil Court.
Therefore, I am of the considered opinion that the
Trial Court is quite justified in observing at Para
12 of its judgment that if at all any terms of the
alleged agreement dated 15.05.2007 are violated
by the accused, then the remedy is left elsewhere
but not before it, which is a Criminal Court. It is
further justified in observing at Para 16 of its
judgment that if at all the accused failed to
perform his part of the said agreement, the remedy
open to the complainant is to take appropriate
steps against the accused before the competent
Civil Court. I do not find any ground to interfere
with these findings. Hence, I hold that the Trial
Court is fully justified in dismissing the complaint
of the complainant and thereby acquitting the
accused of the said offence."
https://www.mhc.tn.gov.in/judis/
5. Per contra, the learned counsel appearing for the
respondent/complainant contended that the petitioner/accused had
borrowed a sum of Rs.75,000/- from the respondent/complainant and that
the petitioner/accused, towards payment, issued cheques for a sum of
Rs.75,000/- (Rupees Seventy Five Thousand Only). He would further
contend that the question as to whether the cheques were issued in
discharge of debt or not, is a matter of evidence which can be gone into
only at the time of trial. He would further contend that this question
cannot be considered in a proceedings under Section 482 of the Code of
Criminal Procedure.
6. A perusal of the complaint shows that the petitioner/accused
is a debtor. It is the specific contention of the respondent/complainant
that the petitioner was a tenant under the respondent/complainant and as
there were some misunderstandings between them, the petitioner has not
paid rental amount regularly as assured by him and that the accused also
issued cheques for a sum of Rs.75,000/- towards payment of rent for the
rented premises. It is submitted by the petitioner that he has also issued
cheques for a sum of Rs.75,000/- towards payment of rent for the rented
premises and the same was returned with an endorsement "insufficient
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funds".
7. When there are prima facie materials against the present
petitioner, the entire proceedings cannot be quashed, especially when
there is a clear-cut statement in the complaint that the accused gave an
assurance to the complainant to pay the rental amount of Rs.75,000/- as
agreed between the parties. As rightly pointed out by the learned counsel
appearing for the respondent/complainant, the question as to whether the
cheques were issued in discharge of the debt or not, is a matter of
evidence and a question of fact, which can be gone into only at the time
of trial. The points raised by the petitioner/accused cannot be decided in
this petition filed under section 482 of the Code of Criminal Procedure.
The decision relied on by the learned counsel for the petitioner, is
distinguishable to the facts of the present case.
8. However, the petitioner can raise all these points before the
Trial Court at the time of trial. The learned Metropolitan Magistrate,
Fast Track Court No.IV, George Town, Chennai, is directed to complete
the trial within a period of three months from the date of receipt of a copy
of this order.
https://www.mhc.tn.gov.in/judis/
9. With the above directions, the Criminal Original Petitions
are dismissed. Consequently, connected Miscellaneous Petitions are
closed.
19.07.2021
msm
Index : Yes/No
Internet : Yes/No
https://www.mhc.tn.gov.in/judis/
V.BHAVANI SUBBAROYAN, J.
msm
Crl.O.P.Nos. 22989 to 22992 of 2016
Crl.M.P.Nos.10777 to 10784 of 2016
19.07.2021
https://www.mhc.tn.gov.in/judis/
