Madras High Court
V.Somasundaram vs M/S.My Estates Infrastructures ... on 15 September, 2015
Author: R.Mala
Bench: R.Mala
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 15.09.2015 CORAM THE HONOURABLE MS. JUSTICE R.MALA Crl.O.P.(MD).No.23511 of 2014 and M.P.(MD) No.1 of 2014 V.Somasundaram ... Petitioner -Vs- M/s.My Estates Infrastructures Engineers & Builders, Represented by its Partner Mr.K.Prabhakar Plot No.5-48, Shanthi Nagar Colony, Deepthisringar, Near Gouthami School, Miyapur Post, Madinaguda, Hyderabad ? 500 049 ... Respondent PRAYER: Petition is filed under Section 482 of the Code of Criminal Procedure praying to call for records in S.T.C.No.574 of 2014 pending on the file of Judicial Magistrate No.IV, Tirunelveli and to quash the same. For Petitioner : Mr.K.Seenivasan, senior counsel for Mr.J.Ashok For Respondent : Mr.A.Saravanan :O R D E R
The petitioner, who is the accused in S.T.C.No.574 of 2014 has come forward with this application to quash the proceedings for the offence punishable under Sections 138 and 142 of the Negotiable Instrument Act.
2.The learned counsel for the petitioner would submit that the respondent has filed a private complaint against the petitioner stating that the petitioner has given two cheques on 09.08.2014, which were represented for encashment and the same were returned as insufficient funds and after issuance of statutory notice and after receipt of reply, he filed the private complaint against the petitioner.
3.The learned counsel for the petitioner would further submit that the cheques have been issued for time barred debt and hence, the petitioner has not committed any offence punishable under Section 138 of the Negotiable Instrument Act; once the debt is time barred, the cheques could not be issued for legally enforceable debt and hence, he prayed for quashing the proceedings. To substantiate his argument, he relied on the decision reported in 2012-2 L.W. (Crl.) 516 ? Sama Dharman & another V. S.Natarajan.
4.Resisting the same, the learned counsel for the respondent would submit that there was an agreement for construction for a sum of Rs.3 crores and odd and the petitioner has given two cheques for sum of Rs.55,00,000/- and Rs.58,72,800/-. He would further submit that it is true that on 18.12.2009, seventh running account bill has been preferred and building has been handed over on 10.01.2010 and he has received the cheques and there was correspondence between both the parties and the amount has been paid. The cheques were given only for discharging the amount and hence, the cheque has not been issued for time barred debt. He would further submit that the decision relied on by the petitioner is not applicable to the facts of the present case and hence, he prayed for dismissal of the application.
5.I have considered the submissions made on either side and perused the available materials on records.
6.The respondent has filed a complaint for the offence punishable under Section 138 of the Negotiable Instrument Act stating that he has undertaken a construction work on contract for Rs.3,94,20,000/- and it was agreed by the accused to pay the total amount in six instalments, after completion of each and every stage, as per the agreement dated 15.09.2008. In the complaint, it was specifically mentioned that 7th running bill has been preferred on 18.12.2009. The total amount is Rs.1,38,72,800/-. He handed over the building on 10.01.2010 and received a sum of Rs.25,00,000/- by a cheque dated 18.01.2010 and when he made a request for the balance amount, the petitioner has issued the cheques.
7.In the complaint itself, it is stated that it is running account. If it is a running account, the time will be calculated from the last payment. Therefore, the question as to whether any payment has been made after 18.01.2010 has to be decided by way of filing documents and the question as to whether the cheques have been issued for discharging the time barred debt has also to be decided after going through the documents only.
8.At this juncture, it is appropriate to consider the decision relied on by the petitioner reported in 2012-2 L.W. (Crl.) 516 ? Sama Dharman & another V. S.Natarajan, wherein, this Court has held that the cheques were given only for time barred debt and it has not been issued for discharging legally subsisting liability. Here, it is well settled dictum of Apex Court that the question of limitation is mixed question of law and fact and that can be decided only at the time of trial after letting evidence. It is pertinent to note that issuance of cheques is admitted and the signature in the cheques also admitted. In such circumstances, I am of the view that whether there is any mutual and running account between the parties after 18.01.2010 till the issuance of cheques on 09.08.2014 has to be decided only at the time of trial after letting oral and documentary evidence and hence, I do not find any reason to quash the proceedings and the petition is liable to be dismissed.
9.Accordingly, this criminal original application is dismissed. Consequently, connected M.P.(MD) No.1 of 2014 is also dismissed.
TO
1.The Judicial Magistrate No.IV, Tirunelveli .