Madras High Court
M/S.Shanthi Subramanian vs K.N.Kittusamy on 26 July, 2012
Author: C.S.Karnan
Bench: C.S.Karnan
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 26.07.2012 Coram THE HON'BLE MR.JUSTICE C.S.KARNAN Crl.R.C.No.108 of 2012 & M.P.No.1 of 2012 M/s.Shanthi Subramanian .. Petitioner Vs. K.N.Kittusamy .. Respondent Prayer :- Criminal Revision is filed under Section 397 r/w 401 of Cr.P.C., against the order dated 19.12.2011 made in Crl.M.P.No.181 of 2009 in C.C.No.296 of 2007, pending on the file of the learned Judicial Magistrate-III, Erode. For Petitioner : Mr.P.Palani Nathan For Respondent : Mr.I.C.Vasudevan - - - ORDER
The short facts of the case are as follows:-
The respondent herein / complainant has filed C.C.No.296 of 2007, on the file of Judicial Magistrate-III, Erode against the revision petitioner herein / accused stating that the accused had borrowed a sum of Rs.8,70,000/- on 05.05.2007. In order to discharge the said loan amount, the accused had issued a cheque to and in favour of the complainant for the said amount drawn on Periyar District Central Co-operative Bank Limited, Chennimalai Branch and when the said cheque was presented by the complainant with his bankers, viz., State Bank of India Mettupalayam Branchi, Chennimalai, the same was returned with an endorsement of "signature differs" in the accused bank account, on 17.05.2007. Thereafter, the complainant had issued a legal notice to the accused and after observing all legal formalities, the case has been filed.
2. Under the circumstances, the complainant has filed Crl.M.P.No.181 of 2009, under Section 216 of Cr.P.C. to alter the charge sheet against the accused which is covered under Section 420, 423, 464, 468 and Section 471 of IPC. The learned Magistrate, after hearing the arguments of the learned counsels on both sides and on perusing the contentions raised by both parties, allowed the petition, with an observation stating that the complainant in his evidence had stated that the accused had wantonly changed his signature in order to cheat the complainant. Hence, the charges can be proceeded with under Section 420, 423, 464, 468 and 471 of IPC.
3. Aggrieved by the said order, the accused has filed the above revision.
4. The very competent counsel, Mr.P.Palani Nathan submits that originally the complainant had filed the said complaint in C.C.No.296 of 2007, for the offence under Sections 138, 141 and 142 of Negotiable Instruments Act, since as per the contention of the complainant, the cheque given by the accused had been dishonoured on presentation. The said cheque was returned with an endorsement stating that the signature of the accused differs. The issue of signature is also one of the issues in the main case. As such, the Sections cannot be altered as Section 420, 423, 464, 468 and 471 of IPC, since the character of the said case would not be affected. Further, the legal formalities has been observed by the complainant as per the Negotiable Instruments Act.
5. The very competent counsel, Mr.I.C.Vasudevan for the complainant submits that the accused had wantonly and deliberately signed in the cheque in a different manner in order to cheat the complainant and as such, he had committed forgery. Further, he had also created the forged instrument, viz., cheque and therefore, the accused is punishable under Section 420, 423, 464, 468 and 471 of IPC. Further, the case has been filed under Section 200 of Cr.P.C. as a private complaint. Now, it is open to the complainant to prove the said case against the accused through oral and documentary evidence. The accused has filed the above revision to create multiple proceedings and his intention is to prolong the main case.
6. On considering the facts and circumstances of the case and arguments advanced by the learned counsels on either side and on perusing the impugned order of the trial Court, this Court does not find any discrepancy in the conclusions arrived at for allowing the said miscellaneous petition in Crl.M.P.No.181 of 2009. Further, it is seen from the evidence that on the date of return of the cheque, the accused had sufficient funds in the account but the cheque had been returned as the signature is found to be different has given in the cheque from the signature of the accused contained in his account. If the case has not been proved against the accused, the accused would be set at liberty and as such, no prejudice would be caused to the accused for allowing the said M.P. by the learned Magistrate. This Court directed the learned Magistrate to dispose the main case on top most priority. Accordingly ordered. Consequently, connected miscellaneous petition is closed.
26.07.2012
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Index : Yes.
Internet : Yes.
To
The Judicial Magistrate-III,
Erode.
C.S.KARNAN, J
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Crl.R.C.No.108 of 2012 &
M.P.No.1 of 2012
26.07.2012