G.S.Karthikeyan vs D.I.Nathan
2022 Latest Caselaw 1128 Mad

                                                                              Crl.O.P.No.14297 of 2017 and
                                                                                   Crl.M.P.No.9091 of 2017

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                      DATED : 25.01.2022

                                                           CORAM

                                   THE HON'BLE MR.JUSTICE N.SATHISH KUMAR

                                              Crl.O.P.No.14297 of 2017 and
                                                Crl.M.P.No.9091 of 2017

                     G.S.Karthikeyan                                       ... Petitioner

                                                             Vs

                     D.I.Nathan                                            ... Respondent


                     PRAYER: Criminal Original Petition filed under Section 482 of Criminal
                     Procedure Code, to call for the records and quash the pending proceedings in
                     C.C.No.732 of 2017 filed under Section 138 of the Negotiable Instruments
                     Act, at the threshold, initial and preliminary stage itself which is pending on
                     the file of the learned VII Metropolitan Magistrate Court, George Town,
                     Chennai-I.


                                     For Petitioner      : Mr.M.K.Hidayatullah

                                     For Respondent      : Mr.Shanmugakani




                     1/4




https://www.mhc.tn.gov.in/judis
                                                                                Crl.O.P.No.14297 of 2017 and
                                                                                     Crl.M.P.No.9091 of 2017

                                                           ORDER

This petition has been filed to quash the charge sheet in C.C.No.732

of 2017, pending on the file of the learned VII Metropolitan Magistrate

Court, George Town, Chennai-1 against the petitioner filed under Section

138 of the Negotiable Instruments Act.

2. The crux of the complaint is that the accused had issued a cheque

for a sum of Rs.4,80,000/- and also another cheque for Rs.5,00,000/-. One

cheque is for the handing over of the L.I.C. Policies and the other is towards

legal fees. When the cheques were presented to the bank, the same were

dishonored on the ground that 'required information not legible/correct'. The

petitioner issued a legal notice and laid a complaint under Section 138 of the

Negotiable Instruments Act which has been taken cognizance by the Court

in C.C.No.732 of 2017.

3. The learned Counsel appearing for the petitioner mainly submitted

that the cheque in question was never issued by the present petitioner and

the accounts were closed as early as in the year 2002 and the same has been

https://www.mhc.tn.gov.in/judis Crl.O.P.No.14297 of 2017 and Crl.M.P.No.9091 of 2017

misused by the respondent. Further, the cheque issued towards the legal fees

cannot be enforced as legally enforceable debt in the eye of law and the

respondent being a lawyer misused the cheques. Therefore, the same has

been sought to be quashed. The learned Counsel had also placed reliance on

the following judgments :

i. V.C.Rangadurai Vs. D.Gopalan & Others reported in CDJ 1978 SC 115 ii. G.F.Hunasikattimath Vs. State of Karnataka reported in CDJ 1990 Kar HC 482 iii. Japahari Vs. Priya reported in 1993 (2) KLT 141 iv. Modicements Vs. Kuchil Kumar reported in 1998 SC 442 v. C.Manohar Vs. B.R.Poornima reported in 2004 Cr.L.J. Madras 4436

4. The learned Counsel appearing for the respondent would submit

that the allegation that cheque was issued only towards legal fees cannot be

decided at this stage. The allegation of the complaint clearly shows that one

cheque was issued towards L.I.C. Policy and the other is for legal fees.

These aspects have been clearly pleaded in the legal notice to the effect that

https://www.mhc.tn.gov.in/judis Crl.O.P.No.14297 of 2017 and Crl.M.P.No.9091 of 2017

the cheques have been given by the petitioner towards commission for the

LIC policy and towards legal fees. That apart he also engaged a lawyer and

paid fees to vacate the premises occupied by the tenants of the petitioner and

the other factual aspects have not been pleaded in the notice. Therefore,

submitted that while exercising the power under Section 482, the same

cannot be decided and hence, opposed to quash the petition.

5. In the light of the above submission, the main contention of the

learned Counsel for the petitioner is that as the accounts are closed in the

year 2002 itself, the complaint filed by the defacto complainant is not

maintainable. Though, he had placed reliance on some judgments in this

regard, the law is well settled in one of the the judgment of [CDJ 1998 SC

442] wherein, the Apex Court has held that merely, the cheque was

dishonored on the ground of account closed will not absolve the liability. The

other judgment relied upon by the Court in the case of C.Manohar Vs.

B.R.Poornima reported in 2004 Cr.L.J. Madras 4436 is arising out of the

judgment of the trial Court and after considering the evidence, the Court has

https://www.mhc.tn.gov.in/judis Crl.O.P.No.14297 of 2017 and Crl.M.P.No.9091 of 2017

passed the judgment. Though the legal fees is not a debt as held by the

Apex Court in the judgment of Supreme Court in the case of Modicements

Vs. Kuchil Kumar reported in AIR 1998 SC 1057, the cheques in question

are not issued only towards the legal fees. It is pleaded in the complaint that

one of the cheques was issued towards the L.I.C. Policy commission and the

another one is for legal fees. Therefore, whether there is a legally enforceable

debt or not, has to be seen only at the time of trial. Though the legal notice

was replied raising disputed question of facts, the same have to be seen only

at the time of evidence. The onus is only on drawer of the cheque to dislodge

the legal presumption. Though, there may not be any direct evidence to

dislodge the presumption, even the circumstances can be brought on record

by the drawer to prove the case before the trial Court. In such view of the

matter, the disputed facts cannot be gone into at this stage while deciding the

petition filed under Section 482 Crl.P.C. Hence, I do not find any merits in

this petition and this petition is liable to be dismissed.

7. Accordingly, this Criminal Original Petition is dismissed. The Trial

https://www.mhc.tn.gov.in/judis Crl.O.P.No.14297 of 2017 and Crl.M.P.No.9091 of 2017

Court shall expedite the trial and dispose of the case as per law on merits.

Consequently, the connected miscellaneous petition is closed. The accused

is directed to appear before the trial Court within two weeks from the date of

receipt of a copy of this order and file an application under Section 436 of

Code of Criminal Procedure. On such filing of the application, trial Court is

directed to release the accused on bail on the same day on executing a bond

for a sum of Rs.10,000/- (Rupees Ten thousand only) each with two sureties.

If thereafter, he absconds, a fresh FIR can be registered under Section 229 A

of the Indian Penal Code.

25.01.2022 vrc / kbs

Internet:Yes Index:Yes Speaking Order

To

The VII Metropolitan Magistrate Court, George Town, Chennai-I.

https://www.mhc.tn.gov.in/judis Crl.O.P.No.14297 of 2017 and Crl.M.P.No.9091 of 2017

N.SATHISH KUMAR, J.

vrc / kbs

Crl.O.P.No.14297 of 2017 and Crl.M.P.No.9091 of 2017

25.01.2022

https://www.mhc.tn.gov.in/judis