Madras High Court
R.Loganathan vs K.Karthikeyan on 28 April, 2022
Crl.O.P.(MD)No.2911 of 2021
BEFORE THE MADURAI BENGH OF MADRAS HIGH COURT
DATED: 28.04.2022
CORAM
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
Crl.O.P.(MD)No.2911 of 2021
and Crl.M.P(MD)No.1581 of 2021
R.Loganathan ... Petitioner/Accused
Vs.
K.Karthikeyan ... Respondent/Complainant
Prayer: Criminal Original Petition filed under Section 482 Cr.P.C., to
call for the records relating to the complaint made in S.T.C.No.08 of
2021 on the file of the learned Judicial Magistrate (Fast Track
Court), Theni and quash the same.
For Petitioner : Mr.C.B.Ramalingam
For Respondent : Mr.G.R.Sathish
https://www.mhc.tn.gov.in/judis
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Crl.O.P.(MD)No.2911 of 2021
ORDER
This petition has been filed to quash the proceedings in
S.T.C.No.08 of 2021 on the file of the learned Judicial Magistrate
(Fast Track Court), Theni, as against the petitioner.
2.The petitioner is the accused in the complaint lodged by the
respondent for the offence punishable under Section 138 of the
Negotiable Instruments Act.
3.The case of the respondent is that the respondent and the
petitioner are friends for the past seven years and they are
practising in the same Court as an Advocate. In the month of
January 2019, the petitioner borrowed a sum of Rs.1,00,000/- and
as such, they had acquaintance with each other. Thereafter, he also
returned the said cheque which was borrowed by him. Further, the
respondent lend a sum of Rs.4,50,000/- on 28.10.2019 for the
petitioner's urgent need. In order to repay the said amount, the
petitioner issued cheque bearing No.871783, dated 11.11.2020 for
the sum of Rs.4,50,000/-. The said cheque was presented for
collection, but it was returned dishonoured for the reason that
'payment stopped by drawer'. After causing statutory notice, the
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Crl.O.P.(MD)No.2911 of 2021
respondent lodged the complaint for the offence punishable under
Section 138 of the Negotiable Instruments Act.
4.The learned counsel appearing for the petitioner would
submit that the petitioner lost his cheque bearing No.871783 drawn
on the State Bank of India, Palanichettipatti Branch, Theni District.
Therefore, he preferred complaint to trace the missing cheque leaf
on 15.02.2020. On the same day, the petitioner also sent a letter to
his Banker, namely, the Branch Manager, State Bank of India,
Palanichetttipatti and requested the Banker to stop payment on the
cheque leaf bearing No.871783. Subsequently, on 18.02.2020, the
petitioner made a paper publication with regard to missing of the
cheque.
5.While being so, the petitioner received the statutory notice,
dated 08.12.2020 issued by the respondent as contemplated under
Section 138 of the Negotiable Instruments Act, thereby demanding
the payment of Rs.4,50,000/-. Immediately, after receiving the
statutory notice, again the petitioner lodged the complaint before
the Inspector of Police, Palanichettipatti Police Station. He was
issued with C.S.R.No.1205 of 2020. For the statutory notice, the
petitioner had sent a reply, dated 22.12.2020 to the respondent
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Crl.O.P.(MD)No.2911 of 2021
narrating all the facts and called upon the respondent to withdraw
the legal notice and to return the cheque which was missing from
the office of the petitioner. The petitioner never borrowed any
amount from the respondent and only due to personal grudge, the
cheque leaf was stolen from the office of the petitioner and
presented for collection. Therefore, the petitioner need not go for
the ordeal of trial in the proceedings initiated for the offence
punishable under Section 138 of the Negotiable Instruments Act.
6.Per contra, the learned counsel appearing for the
respondent would submit that the documents produced by the
petitioner have to be decided before the trial Court. In fact, trial
already commenced and P.W.1 was also examined before the trial
Court. Therefore, the present quash petition itself is not
maintainable and liable to be dismissed.
7.Heard the learned counsel appearing for the petitioner and
the learned counsel appearing for the respondent and perused the
materials available on record.
8.On a perusal of the materials available on record revealed
that P.W.1 was examined on 20.04.2022 and when the matter was
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Crl.O.P.(MD)No.2911 of 2021
posted for cross-examination of P.W.1, the petitioner filed a memo
before the trial Court stating that he has filed a transfer petition to
transfer S.T.C.No.8 of 2021 from the file of the trial Court to the file
of the Chief Judicial Magistrate, Theni. However, the petitioner failed
to produce any interim order to stay all further proceedings.
Therefore, the trial Court proceeded with the trial and posted the
matter for cross-examination. In fact, on 20.04.2022, the petitioner
cross-examined P.W.1, namely, the respondent herein and finally
stopped the cross-examination and requested time for further
cross-examination for the reason that the entire records are not
available to cross-examine P.W.1. Again on 25.04.2022, the
petitioner filed a memo stating that he had filed a transfer petition
before the learned Chief Judicial Magistrate, Theni to transfer
S.T.C.No.8 of 2021 from the file of the trial Court to any other Court
and also failed to produce any interim order of stay. Therefore,
already the trial commenced and in fact, the petitioner
cross-examined P.W.1 in part. All the documents produced before
this Court with regard to the police complaint, stop payment letter
issued to his Banker and reply notice are to be decided before the
trial Court and all the documents can be appreciated only by the
trial Court.
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Crl.O.P.(MD)No.2911 of 2021
9.Admittedly, the petitioner partly cross-examined the
respondent and requested for further cross-examination. In fact,
the trial Court granted several adjournments for cross-examination
of P.W.1 and the petitioner failed to cross-examine P.W.1. Therefore,
the trial Court closed the evidence of the complainant and posted
the matter for defence side evidence. Thereafter, the defendant's
side evidence was also closed, since the petitioner failed to examine
any of the witnesses to rebut the case of the respondent.
10.In view of the above facts and circumstances, this Court is
not inclined to quash the proceedings in S.T.C.No.08 of 2021 on the
file of the learned Judicial Magistrate (Fast Track Court), Theni and
the Criminal Original Petition is dismissed. However, the petitioner is
at liberty to file a petition to re-call P.W.1 for continuation of his
cross-examination. If any objection filed for recalling of P.W.1, the
trial Court is directed to consider the same and pass orders and fix a
time for cross-examination of P.W.1. If the petitioner failed to
cross-examine P.W.1 as directed by the trial Court, the trial Court is
directed to proceed with the trial in accordance with law and
complete the same within a period of three months thereafter.
Considering the facts and circumstances of the case, the personal
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Crl.O.P.(MD)No.2911 of 2021
appearance of the petitioner is dispensed with and he shall be
represented by a counsel after filing appropriate application.
However, the petitioner shall be present before the Court at the
time of furnishing of copies, framing charges, questioning under
Section 313 Cr.P.C. and at the time of passing judgment.
Consequently, connected Miscellaneous Petition is closed.
28.04.2022
Internet :Yes
Index :Yes / No
ps
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.2911 of 2021
G.K.ILANTHIRAIYAN, J.
ps
To
1.The Judicial Magistrate (Fast Track Court),
Theni.
2.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
Order made in
Crl.O.P(MD)No.2911 of 2021
28.04.2022
https://www.mhc.tn.gov.in/judis
