Madras High Court
Mangaiyarkarasi vs R.Subramanian on 26 April, 2022
Author: G.Ilangovan
Bench: G.Ilangovan
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated:26/04/2022
CORAM:
THE HON'BLE MR JUSTICE G.ILANGOVAN
Crl.OP(MD)No.18314 of 2018
and
Crl.MP(MD)Nos.8154 and 8155 of 2018
Mangaiyarkarasi : Petitioner/Accused
Vs.
R.Subramanian : Respondent/Complainant
Prayer: Criminal Original Petition has been filed
under section 482 of the Criminal Procedure Code, to call
for the records pertaining to STC No.160 of 2018 on the
file of the Judicial Magitrate, Devakottai and quash the
same.
For Petitioner : Mr.J.Anandkumar
For Respondent : Mr.S.M.Sanjay
(No appearance)
https://www.mhc.tn.gov.in/judis
2
O R D E R
The petition has been filed seeking quashment of the case in STC No.160 of 2018 on the file of the Judicial Magistrate, Devakottai.
2.The case of the prosecution in brief:-
It is a case of the offences under sections 138 and 142 of the Negotiable Instruments Act. The respondent is the de-facto complainant, who lodged a complaint before the trial court with the following allegations:- The petitioner herein is the nephew of the complainant. She obtained a loan amount of Rs.9,50,000/- to meet out her business requirement. The loan amount was obtained on 13/09/2015 and promised to repay the same within two months. On that date itself, she issued a posted dated cheque drawn on Indian Bank, dated 14/09/2017. When it was presented for payment on 14/09/2017, it was returned on 19/09/2017 with an endorsement funds insufficient.
After completing the statutory formalities, he filed a private complaint before the Judicial Magistrate, Devakottai, which was taken cognizance in STC No.160 of 2018.
https://www.mhc.tn.gov.in/judis 3
3.Seeking quashment of the same, this petition has been filed by the petitioner mainly on the ground that there was a dispute between herself and the complainant and the respondent was doing share market business and the petitioner invested money and because of the business loss, that amount could not be repaid. Because of the above said issue, the marriage life of the respondent also spoiled. He filed a divorce petition. During the pendency of the petition for the purpose of getting consent from his sister for divorce, the respondent started giving several false complaints as detailed in the petition. So this complaint is one among these false complaints. In 2014 itself, the wife of the respondent left the matrimonial home. Absolutely, there is no possibility of borrowing money in 2015, because of the above said strained relationship.
4.Even though, notice has been served, non appeared for the respondent. Originally, he was represented by a counsel, but later, he failed to appear. So his name was ordered to be printed in the cause list. Accordingly, it was printed in the cause list. So after hearing the learned counsel appearing for the petitioner and perusing the records, this order is passed.
https://www.mhc.tn.gov.in/judis 4
5.From the pleadings, it is seen that both the parties are close relatives. The petitioner namely Mangaiyarkarasi and the respondent's wife are sisters. Because of the matrimonial issue between the respondent and her wife, HMOP No.36 of 2016 has been filed by the respondent seeking divorce, wherein it has been mentioned by the respondent that on 08/04/2014, his wife lodged a complaint with the Devakottai All Women Police Station. So according to the learned counsel appearing for the petitioner, right from the date of marriage, the relationship between the husband and wife become strained. Subsequently, it also continued with that of the petitioner, who is the sister.
6.The main ground that has been focused by the petitioner in the above petition is the strained relationship. According to the petitioner, absolutely there is no possibility for the petitioner to have borrowed a sum of Rs.9,50,000/-, on 13/09/2015.
7.No doubt, it is a factual issue, which cannot be gone into at this stage and subsequent to that, several https://www.mhc.tn.gov.in/judis 5 cases have been registered between the parties. The cases are Crime Nos.187 and 313 of 2016, wherein, we find a reference to the disputed document. In Crime No.187 of 2016, which was filed by the respondent herein, wherein this petitioner is not a party.
8.Reading of the above said complaint shows that there was a money dispute between the parties. So far as the case in Crime No.313 of 2016 is concerned, this petitioner is arrayed as A1 and the complainant is the respondent herein, wherein he has stated that he lent a sum of Rs.5,15,000/- to this petitioner on various dates. That amount was not repaid. When the money was demanded back, he was criminally intimidated and that amount was also cheated and he was also assaulted. That occurrence said to have been taken place, on 22/02/2016.
9.The learned counsel appearing for the petitioner would rely upon this document for the purpose of showing that there is no reference to the payment of Rs. 9,50,000/- by the respondent to the petitioner on the date mentioned in the complaint. So according to him, this shows the improbability of the respondent's case. https://www.mhc.tn.gov.in/judis 6
10.No doubt, it is seen that there was a continuous trouble between the parties, which caused strained relationship, not only between the respondent and the petitioner, but also between the husband and wife. These are the factual issues.
11.The signature of the petitioner in the disputed document is not denied. It is the duty of the petitioner to prove her case before the trial court by setting out the facts and circumstances. The disputed factual aspects cannot be gone into by this court at this stage. Except the factual issues, no other legal ground has been raised by the petitioner.
12.The next contention of the petitioner is that the cheque was given as security, when the amount was invested in the share business conducted by the respondent; But later the business ran into loss. Absolutely, there was no binding liability between the parties. According to her, in the absence of any binding liability, the offence under section 138 of the Negotiable Instruments Act cannot be made applicable. https://www.mhc.tn.gov.in/judis 7 For that purpose, the learned counsel appearing for the petitioner would rely upon the following judgments:-
1.Indus Airways Private Limited and another Vs. Magnum Aviation Private Limited and another (2014)12 SCC 539;
2.1999(1)CTC 6 (M/s.Balaji
Seafoods Exports (India) Ltd.,
represented by its Director, Chalapathy and another Vs. Mac Industries Ltd).
13.No doubt, the Hon'ble Supreme Court in the case of Indus Airways Private Limited and another Vs. Magnum Aviation Private Limited and another (2014)12 SCC 539 has observed that when there was not existing liability on the date of issue of the cheque, the offence under section 138 of the Negotiable Instruments Act may not be attracted. There is no quarrel on the proposition of law. Whether there was existing liability on the date of issue of the cheque, is a matter for consideration by the trial court through evidence. The factual circumstances are entirely different. Here, it is the specific case of the respondent that on the particular date mentioned in the petition, this petitioner received Rs.9,50,000/- to meet out her requirement in the business. So when that is being so, as mentioned earlier, whether it was a security https://www.mhc.tn.gov.in/judis 8 document or not cannot be a matter for consideration sitting in 482 Cr.P.C jurisdiction.
14.The statement of account of the petitioner has been filed for the purpose of argument that the date of presentation of the cheque is not mentioned in the statement of the accounts. It is a matter for evidence. So, improbable question cannot be taken for discussion in this petition.
15.In view of the above facts, this criminal original petition is dismissed. However, considering the oldness of the matter, there shall be a direction to the trial court to expedite the trial process and complete the same within a period of five months from the date of receipt of a copy of this order. Consequently, connected Miscellaneous Petitions are closed.
26/04/2022 Index:Yes/No Internet:Yes/No er To, The Judicial Magistrate, Devakottai.
https://www.mhc.tn.gov.in/judis 9 G.ILANGOVAN, J er https://www.mhc.tn.gov.in/judis 10 Note :
In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate/litigant concerned.Crl.OP(MD)No.18314 of 2018
26.04.2022 https://www.mhc.tn.gov.in/judis