Madras High Court
Mr.T.Kannan vs Mr.G.Seenivasan on 22 September, 2015
Author: R.Mala
Bench: R.Mala
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 22.09.2015
CORAM
THE HONOURABLE MS.JUSTICE R.MALA
Criminal Original Petition (MD) No.18221 of 2015
and
M.P.(MD)Nos.1 and 2 of 2015
Mr.T.Kannan : Petitioner
Vs.
Mr.G.Seenivasan : Respondent
PRAYER: Criminal Original Petition is filed under Section 482 Cr.P.C praying
to call for the records in C.C.No.37 of 2015 for commission of alleged
offence under Section 138 of Negotiable Instruments Act, pending on the file
of learned Fast Track Judge/Magistrate Level, Kovilpatti and quash the same
on the above grounds.
!For Petitioner : Mr.S.S.Kumar
^For Respondent :
:ORDER
The petitioner has come forward with the present petition seeking to quash the proceedings in C.C.No.37 of 2015 on the file of learned Fast Track Judge/Magistrate Level, Kovilpatti.
2. The learned counsel for the petitioner would submit that the respondent, as a complainant, has preferred a complaint for the offence punishable under Section 138 of Negotiable Instruments Act, stating that the petitioner has borrowed a sum of Rs.2,00,000/- for his business purpose and to discharge the legally subsisting liability, he issued two post-dated cheques, viz., Cheque No.002766, dated 22.12.2014, drawn on Tamil Nadu Mercantile Bank, Industrial Finance Branch, Amsikarai, Chennai and another cheque No.319750, dated 22.12.2014, drawn on Indian Bank, Tirumangalam, Chennai. When the cheque drawn on Tamil Nadu Mercantile Bank was presented for encashment on 02.02.2015, it was returned as 'bank/ branch blocked' and the cheque drawn on Indian Bank was returned as 'insufficient fund'. After issuance of statutory notice, he preferred the present complaint for the offence punishable under Section 138 of Negotiable Instruments Act.
3. The learned counsel for the petitioner would state that the cheque drawn on Tamil Nadu Mercantile Bank has been returned stating that the branch has been blocked and thereby, the ingredients of Section 138 of Negotiable Instruments Act have not been made out. As such, the complaint is not maintainable. The second limb of argument is that the cheque book has been issued in the year 1997-1999. The cheque has been given to one Rajaram, who is none other than the brother-in-law of the respondent herein, in business transaction and it has been misused by him. Thirdly, the Fast Track Court has no locus standi to take the complaint on file. Lastly, on 14.09.2014, i.e., on the day on which he alleged to borrowal of the money, he is at Chennai and he has not gone to Kovilpatti and borrowed money as alleged by the respondent and so, he had a good case for alibi and on that basis, he prayed for quashing the complaint.
4. At the time of admission, the arguments advanced by the learned counsel for the petitioner were heard in length. Considering the facts and circumstances of the case, notice to the respondent is dispensed with.
5. It is the case of the petitioner that the respondent herein, as a complainant, preferred a complaint for the offence punishable under Section 138 of Negotiable Instruments Act, stating that the petitioner has borrowed a sum of Rs.2,00,000/- towards business development and to discharge the legally subsisting liability, he issued two post-dated cheques, viz., Cheque No.002766, dated 22.12.2014, drawn on Tamil Nadu Mercantile Bank, Industrial Finance Branch, Amsikarai, Chennai and another cheque No.319750, dated 22.12.2014, drawn on Indian Bank, Tirumangalam, Chennai. When the cheque drawn on Tamil Nadu Mercantile Bank was presented for encashment on 02.02.2015, it was returned as 'bank/ branch blocked' and the cheque drawn on Indian Bank has been returned as 'insufficient fund'. After issuance of statutory notice, he preferred the present complaint for the offence under Section 138 of Negotiable Instruments Act.
6. Insofar as the first contention that the branch has been blocked and thereby, the ingredients of Section 138 of Negotiable Instruments Act have not been made out is concerned, the said fact can be proved at the time of trial by way of examining the bank officials, as to why the bank/branch has been blocked and whether the cheque has been issued knowing fully well that the bank has been blocked. It is only a question of fact and that can be proved before the Trial Court, after letting evidence and that is not a reason to quash the complaint.
7. The second ground is that the cheque book has been issued in the year 1997-1999. It is admitted fact that the cheque s issued contain his signature, but, according to the petitioner, that has been given to one Rajaram, who is none other than the brother-in-law of the respondent, for his business purpose. The fact as to whether the cheques have been issued for discharging legally subsisting liability is a question of fact and that can be decided at the time of trial, after letting oral and documentary evidence. In such circumstances, the above ground also fails.
8. Insofar as the third limb of argument that the Fast Tract Court has no locus standi to take the private complaint on file is concerned, I am of the view that some Fast Tract Courts have been constituted only for the purpose of deciding the cases relating to the offence under Section 138 of Negotiable Instruments Act and all the powers of regular Courts have been conferred to the Fast Track Courts also. In such circumstances, I am of the view that the argument advanced to that effect also does not merit acceptance.
9. Lastly, the learned counsel for the petitioner has taken me through the complaint, wherein, it was stated that on 14.09.2014 the petitioner had gone to Kovilpatti and borrowed the amount from the respondent at his residence, for his business development, but, whereas, on the alleged day, he was at Chennai to attend the meeting conducted by the Tamil Nadu Medical Laboratories Association held at Appolo Diagnostic Centre, Ayyanavaram, Chennai, and the meeting was started from 10.30 a.m., to 12.30 p.m., and 02.00 p.m., to 05.00 p.m., and he attended the same as President of the said Association.
10. As per the decision of this Court reported in 2010(1) LW (Crl.) 531 [K.S.Dhandapani v. State], plea of alibi can be proved at the time of trial and not on the basis of documents. The genuineness of the documents can be decided only at the time of trial. Therefore, all the points raised by the petitioner are only questions of fact and that can be decided at the time of trial and not in a petition to quash under Section 482 of Code of Criminal Procedure. In such circumstances, I do not find any reason to quash the proceedings in C.C.No.37 of 2015 on the file of learned Fast Track Judge/Magistrate Level, Kovilpatti. Hence, the petition deserves dismissal and accordingly, it is, hereby, dismissed. Consequently, the connected miscellaneous petitions are also dismissed.
11. At this juncture, the learned counsel for the petitioner wants the personal appearance of the petitioner to be dispensed with. The Trial Court is directed to consider the application of the petitioner to dispense with the personal appearance and pass appropriate orders on the same, on merits and in accordance with law.
To The Fast Track Judge/Magistrate Level, Kovilpatti.
.