Madras High Court
P.Ramasamy vs T. Balu on 5 January, 2022
Crl. O.P. No.16816 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 5/1/2022
CORAM
THE HONOURABLE MR.JUSTICE N. SATHISH KUMAR
Crl. O.P. No.16816 of 2017
and
Crl.M.P.Nos.10332 and 10333 of 2017
and
3093 of 2021
P.Ramasamy ... Petitioner
Vs
T. Balu ... Respondent
PRAYER : Criminal Original Petition filed under Section 482 Cr.P.C., to call
for the records pertaining to the proceedings in S.T.C.No.43 of 2017, pending
on the file of the learned Judicial Magistrate, Coonoor.
For Petitioner ... Mr.G.Karthikeyan
For Respondent ... Mr.J.Saravanavel
-----
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Crl. O.P. No.16816 of 2017
ORDER
This Criminal Original Petition has been filed to quash the proceedings
in S.T.C.No.43 of 2017, pending on the file of the Judicial Magistrate,
Coonoor, for the offence punishable under Section 138 of the Negotiable
Instruments Act.
2. Brief facts which are leading to the disposal of this Criminal Original
Petition is as follows:-
It is the case of the complainant that the daughter of the complainant was
admitted for throat infection in the hospital from 28/9/2016 till 30/9/2016 run
by the son of the accused, Muralidharan. As the treatment was not in order, she
developed complications. Since the news has been spread to the public, people
gathered the hospital and there was law and order problem. The Tahsildar,
interfered and made some arrangement for settlement. In the settlement, Doctor
was agreed to pay the medical expenses of the defacto complainant's daughter
to the tune of Rs.2,50,000/-. Accordingly, the daughter of the defacto
complainant was shifted to Coimbatore Hospital. However, there was no
improvement and she died on 17/11/2016.
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3. On hearing the news, public including the students and others
protested to book the Doctor for criminal case and politicians also involved. At
this stage, the petitioner herein agreed to undertake the expenses for a sum of
Rs.12,35,383/- and gave a cheque. When the cheque was presented for
encashment on 4/1/2017, the same was dishonoured on the ground “Payment
stopped by drawer.” After issuing the statutory notice, complaint has been
filed. The same was sought to be quashed.
4. The learned counsel appearing for the petitioner vehemently
submitted that the very complaint itself indicate that the cheque itself was not
issued on free consent and was obtained due to coercion and hence, the same
cannot be enforced in the eye of law. Therefore the same sought to be quashed.
5. The learned counsel appearing for the respondent submitted that due
to poor treatment given by the son of the petitioner, the health condition of the
respondent's daughter become deteriorated. Only to meet out the medical
expenses of her daughter, son of the petitioner entered into an agreement.
However, he has not acted on the basis of the agreement. After the death of his
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Crl. O.P. No.16816 of 2017
daughter, the accused has issued a cheque in the presence of Tahsildar and
others. Therefore as long as there is an agreement between the parties and the
cheque was the result of such agreement, which cannot be said that the same
was issued only under coercion and the same was dishonoured and legal
notice was issued. The presumption attached to the cheque under Sections 138
and 139 of the Negotiable Instruments Act clearly attracted. Whether or not the
cheque was issued at coercion is a matter of evidence and the same cannot be
gone into at this stage. Hence prays for dismissal of this Criminal Original
Petition.
6. To substantiate his case, the learned counsel appearing for the
respondent cited the following decisions:-
(i). Shiv Kumar @ Jawahar Saraf Vs. Ramavtar Agarwal ((2020) 12
Supreme Court Cases 500
(ii). M. Jaishankar and Another Vs. Sree Gokulam Chits and Finance
Corporation Private Limited, rep. By its Authorised Person, Mr.P.Kaliappan
(2020 SCC Online Mad – 5550)
(iii). Gimpex Private Limited Vs. Manoj Goel (2021 SCC Online SC
925).
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and submitted that the defence sought to be objected in quash petition cannot
be entertained as long as the statutory presumption available under Sections
138 and 139 of the Negotiable Instruments Act.
7. Much emphasis was placed on Gimpex Private Limited Vs. Manoj
Goel (2021 SCC Online SC 925) to the effect that the Court cannot entertain
the defence while exercising the power under Section 482 of the Code of
Criminal Procedure and quash the proceedings under Section 138 of the
Negotiable Instruments Act.
8. It is well settled that when the factual aspects sought to be canvassed
before this Court, normally the Court would not entertain the petition filed
under Section 482 of the Cr.P.C., to quash the proceedings, when the cheque is
in question issued in normal circumstances, there is a contract between the
parties.
9. At the same time, the very complaint itself indicate that the cheque in
question is not the result of any legally enforceable debt and came in the
possession of the holder due to pressure tactics to prevent the criminal
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prosecution at the instance of mob and political parties, who gathered in front
of the hospital run by the son of the petitioner herein. The Court can very well
go into the validity of the cheque and its enforceability even while exercising
the power under Section 482 of Cr.P.C., and as held by the Hon'ble Apex Court
in SAMPELLY SATYANARAYANA RAO Vs. INDIAN RENEWABLE
ENERGY DEVELOPMENT AGENCY LTD that the Court can normally
proceed against the averments of the complaint. In the defence of the accused
cannot be considered at this stage. When the allegations in the complaint itself
indicate that the cheque in question was not the result of free consent and is
obtained out of coercion and threat, such cheque certainly is not enforceable in
the eye of law.
10. It is relevant to note that the averments contained in paragraph 3 (d)
and (e) of the complaint makes it clear that when the health condition of the
daughter of the respondent is not improved, there were hue and cry mainly by
the public. There were law and order problem, as a result, the Tahsildar
interfered, and the Doctor has agreed to pay 75% of the medical expenses and
he has paid Rs.2,50,000/-. Thereafter, the daughter of the defacto complainant
died in Coimbatore Hospital and again there were protest by the public. The
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Chairman of the Municipality pacified the public. At this stage, the cheque was
obtained from the accused herein, in order to avoid criminal prosecution of the
son. The very allegations from the complaint indicate that there was a threat
and coercion by the public and defacto complainant. Therefore, in such
circumstances, at no stretch of imagination, it can be said that cheque was
issued with free consent.
11. It is relevant to note that Sections 10, 13 and 14 of Indian Contract
Act and the same reads as follows:-
“10. All agreements are contracts if they are
made by the free consent of parties competent to
contract, for a lawful consideration and with a
lawful object, and are not hereby expressly declared
to be void.
13. Consent defined – Two or more persons
are said to consent when they agree upon the same
thing in the same sense.
14. “Free consent” defined – Consent is said
to be free when it is not caused by coercion, undue
influence, fraud, misrepresentation, mistake.
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12. If any cheque is obtained to prevent such criminal prosecution, it
cannot be said that the cheque was issued with free consent. It is relevant to
note that what was complained against is mechanical negligence which has not
even established. No expert opinion was obtained to the effect that the
deceased daughter was died due to medical negligence.
13. Before proceeding, expert opinion must be obtained, as per Jacob
Mathew Vs. State of Punjab and Another (2005) 6 Supreme Court Cases 1.
Whereas in this case, only on the assumption of the parties, there were protest
made by the politicians and interested persons and made some damages to the
properties also. In the absence of any proof that there was medical negligence,
which resulted in the death. It cannot be said that there was a proper agreement
entered into between the parties and the cheque came to be issued.
Accordingly, this Court is of the view that such a cheque certainly not
enforceable in law. Further, it has already indicated that it is not the case of the
respondent that negligence has been proved against the Doctor.
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14. In such a view of the matter, when the cheques have been obtained
in a forcible manner, making a threat or damages to the property, such cheque
is unenforceable by any law and is not supported by any consideration. The
judgments relied upon by the learned counsel appearing for the respondent is
not applicable to the facts of this case.
15. In the result, this Criminal Original Petition is allowed. S.T.C.No.43
of 2017, pending on the file of the learned Judicial Magistrate, Coonoor, is
quashed. Consequently, the connected Criminal Miscellaneous Petitions are
closed.
5/1/2022
mvs.
Index: Yes/No
Internet: Yes/No
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Crl. O.P. No.16816 of 2017
N. SATHISH KUMAR, J
mvs.
To
1. The learned Judicial Magistrate, Coonoor.
2. The Public Prosecutor,
High Court, Madras.
Crl. O.P. No.16816 of 2017
5/1/2022
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