Madras High Court
S.Magheshwari vs Annamalai on 4 April, 2022
Crl.O.P.(MD)No.8557 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 04/04/2022
CORAM:
THE HON'BLE MR JUSTICE G.ILANGOVAN
Crl.O.P.(MD)No.8557 of 2019
and
Crl.MP(MD)Nos.5368 and 5369 of 2019
S.Magheshwari : Petitioner/Sole Accused
Vs.
Annamalai : Respondent/De-facto
Complainant
Prayer: Criminal Original Petition is filed under
Section 482 Cr.P.C., to call for the records in CC No.86 of
2017 on the file of the Judicial Magistrate No.1, Dindigul
and quash the same.
For Petitioner : Mr.I.Saliyakhan
For Respondent : Mr.V.Karuna
O R D E R
This criminal original petition is filed seeking
quashment of the case in CC No.86 of 2017 on the file of
the Judicial Magistrate No.1, Dindigul.
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Crl.O.P.(MD)No.8557 of 2019
2.The case of the prosecution in brief:-
It is a case of private complaint. The respondent
herein filed a private complaint setting out the following
facts. The petitioner herein obtained a loan amount of Rs.
7,50,000/- promising to repay the same within two months.
On 09/04/2017, towards discharge of the above said loan
amount, she handed a cheque, dated 09/06/2017 drawn the
cheque in favour of the complainant and the cheque was
presented for payment, on 09/06/2017 before the R.M Colony
Branch IOB, but that was returned as 'payment stopped by
the drawer'. After completing the statutory formalities, he
filed the private complaint before the trial court stating
that this petitioner has committed the offence under
section 138 of the Negotiable Instruments Act.
3.Seeking quashment of the same, this petition has
been filed mainly on the ground that the respondent has not
stated the correct date of the transaction in the
complaint. Another ground is that the respondent has
omitted to mention in which transaction, the cause of
action has arisen. The place of payment of loan is not
mentioned and the respondent is also not known to the
petitioner.
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Crl.O.P.(MD)No.8557 of 2019
4.It is the further ground that the total value of the
cheque issued is only having below Rs.5,00,000/-. But the
case has been filed for a sum of Rs.7,50,000/-, which is
not permissible under law.
5.Heard both sides.
6.It is a transaction out of the loan and
subsequently, the alleged issuance of the cheque for the
above said loan amount, towards the discharge of the above
said loan amount and presentation for payment, dishonoured.
7.The learned counsel appearing for the petitioner
would submit that value of the cheque is clearly mentioned
in the cheque itself as below Rs.5,00,000/-, but the
respondent has filled up the cheque for Rs.7,50,000/- and
presented the same for payment. So according to him, the
cheque is an un-authorised one and notice was not properly
served upon the petitioner.
8.The learned counsel appearing for the petitioner
would rely upon the judgment of this court reported in the
case of Kishore Vs. Arul Jothi [2017(3) MWN (Cr.) DCC 29
(Mad.)], wherein a similar situation has arisen. The plea
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Crl.O.P.(MD)No.8557 of 2019
was raised in that case is that since notice of demand only
will give cause of action for the prosecution. If no notice
has been received by the accused, the prosecution itself is
not valid under law. It is the specific case of the
complainant in the private complaint that he issued notice
on 22/06/2017, but it was returned un-served, on
30/06/2017. So according to him, notice was sent to the
known address of the petitioner, which is deemed service.
9.The learned counsel appearing for the petitioner
would submit that as per the judgment of this court
reported in Kishore Vs. Arul Jothi {2017(3)MWN (Cr.) DCC 29
(Mad.), notice is sent to the wrong address that cannot be
termed to be a proper service. So also relied upon the
judgment in the case of Sivasakthi Agencies Vs. Ajit
Construction [2016(3) MWN (Cr.) DCC 127 (Mad.)
10.Per contra, the learned counsel appearing for the
respondent would submit that whether proper notice has been
served upon the petitioner or not, cannot be a matter for
consideration by this court.
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Crl.O.P.(MD)No.8557 of 2019
11.But pointing out this judgment, the learned counsel
appearing for the petitioner would submit that notice was
not properly sent to the known address of the petitioner.
Even though the school address, where she is working has
been mentioned, the respondent by influencing the postal
department official has got it returned, as if intimation
has been delivered to him. Over which also, she sent a
complaint to the postal authorities and disciplinary action
was also initiated against the concerned officer and he was
also imposed a penalty of warning and his increment was
also withhold for three years. So no doubt, there is a
misconduct on the part of the postal authority, but the
mistake that was committed by the above said postal
authority should not affect the case of the respondent
herein, for which, he is noway responsible. He has sent a
demand notice with proper acknowledgement due through
registered post to the working address of the petitioner.
12.Perusal of the records further shows that the
complaint was filed within a statutory time I.e., in 2017.
After receiving the summon only, it appears that the
respondent filed a complaint against the postal authority,
on 22/12/2018. So it appears that on that date, the
petitioner was having knowledge about the demand notice.
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Crl.O.P.(MD)No.8557 of 2019
So she ought to have either received the copy of the demand
notice by filing the copy application or memo before the
trial court and ought to have responded the same and
without following such a course, she immediately filed the
quash petition on the ground that departmental action was
initiated against the concerned officer. So the failure on
the part of the petitioner to take the above said steps
dis-entitles her from maintaining this petition.
13.The next ground is that the disputed cheque is
valid below Rs.5,00,000/-. Whether it is a valid cheque or
not cannot be a matter for consideration in this petition.
It is a matter for trial.
14.The petitioner has not denied her signature in the
disputed cheque. The cheque book is in the name of the
petitioner, which is mentioned in the cheque leaf itself.
Similarly the savings bank account maintained by her
tallies with that of the account, which is maintained by
her in the State Bank of India, Dindigul. So this cannot
be a reason for quashment.
15.So for all the reasons, I am of the considered view
that in the facts and circumstances of this case, the
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Crl.O.P.(MD)No.8557 of 2019
petitioner has to undergo the trial process before the
trial court to its logical end. Whatever may be, she can
make all possible defence, that was available to her as per
law before the trial court.
16.In the result, this criminal original petition is
dismissed. However, considering the fact that the
petitioner is working as a teacher, her personal appearance
is dispensed with before the trial court. Within 15 days
from the date of receipt of a copy of this order, the
petitioner must appear before the trial court and file an
undertaking affidavit that she will appear as and when
required by the court and she must ensure that he is
properly represented by an Advocate. Further, considering
the fact that the matter is of the year 2017 and kept
pending for more than five years without any progress,
there shall be a direction to the Judicial Magistrate No.1,
Dindigul to expedite the trial process and dispose of the
case within a period of five months from the date of
receipt of a copy of this order and the compliance report
must be submitted to this Registry forthwith.
04/04/2022
Internet:Yes/No
Index:Yes/No
er
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD)No.8557 of 2019
Note: In view of the
present lock down owing
to COVID-19 pandemic, a
web copy of the order may
be utilized for official
purposes, but, ensuring
that the copy of the
order that is presented
is the correct copy,
shall be the
responsibility of the
advocate/litigant
concerned.
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD)No.8557 of 2019
G.ILANGOVAN,J.,
er
To,
The Judicial Magistrate No.1,
Dindigul.
Crl.O.P.(MD)No.8557 of 2019
04/04/2022
https://www.mhc.tn.gov.in/judis
