Crl.O.P.No. 5970 Prayer: Petition filed under Section 482 Cr.P.C seeking for the relief as stated therein.
For Petitioner : Mr. Ilanthiraiyan For M/s. Sai Bharath and Ilan For Respondents : Mr. T. Arul Raj C O M M O N O R D E R The petitions are filed, seeking for a direction to call for the records in C.C. Nos. 1544, 1545, 1546, 1547, 1554, 1555, 1556, 1558, 1559 1577 of 2008 and C.C. Nos. 15 & 16 of 2009 on the file of the learned Judicial Magistrate No. I, Villupuram and C.C. No. 174 of 2008 on the file of the learned District Munsif-cum-Judicial Magistrate, Thirukkalukundram and STC No. 449 of 2008 on the file of the learned Judicial Magistrate No. II, Vridhachalam and quash all the proceedings.
2. The petitioner, in all the petitions is an accused for an offence punishable under Section 138 of Negotiable Instruments Act, pending before different Judicial Magistrate Courts. However, the complaint has been initiated by different persons. In view of the reason that the petitioner has argued the common grounds, applicable to all the cases, the batch of cases are disposed of by a single common order.
3. Learned counsel for the petitioner submits that in all the cases, date of cheque has been wrongly mentioned while issuing the statutory notice; that statutory notice must contain all particulars and if erroneous particulars are given, the proceedings initiated under Section 138 of Negotiable Instruments Act can be quashed; that the cheques in dispute were extorted from the Police station by way of coercion and threat and under such circumstances, instrument cannot be treated as valid cheques; that it is pending for investigation with jurisdiction police. He fairly submitted that a counter complaint has also been given by the complainant and the same is also pending for investigation and contended that the proceedings initiated against the petitioner are liable to be quashed.
4. Per contra, learned counsel for the respondent / complainant submits that there is no dispute with regard to the amount mentioned in the cheque, name of the bank, particular of the cheques, authenticity of signature and other details. He also submits that correct date has been given in the complaint before the learned Magistrate. Only because of the reason that wrong date has been given in the notice, the proceedings initiated need not be quashed. Even in the reply notice given by the petitioner, such grievances agitated were not taken. The allegation of the petitioner in respect of the cheques, having been received by way of coercion and threat cannot be taken for granted, since it is a disputed fact.
5. Heard the submission made on either side and perused the materials available on record.
6. Admittedly, wrong date has been given in the statutory notice issued prior to filing of the private complaint. However, such mistake rectified and correct date has been given in the complaint. There is no dispute about other contents of the cheques. The petitioner is also not disputing his signature in those cheques and the authenticity of cheques is not in dispute. Sub-clause (b) of the proviso to Section 138 of the Act only requires notice to be given in writing by the payee to the drawer in which there should be a demand made by the payee and that this clause does not prescribe any form or format for such notice. What is required is the communication in writing by the payee to the drawer asking the drawer to pay the amount mentioned in the cheque which was dishonoured and may give payment of amount within 15 days from the date of receipt of the notice. If the cheque is returned, on account of any materials or structural defect namely for want of signature, date not properly written, figure of the amount has been over-written, correction in the signature and name of the drawer, it may be contended that an offence under Section 138 of Negotiable Instruments Act cannot be made out.
7. In the case on hand, admittedly, the mistake regarding date of the cheque wrongly mentioned in the notice has been rectified and it was corrected in the complaint. The allegation of the petitioner, that the cheques in question have been extorted from the petitioners in the Police station by way of coercion and threat cannot be appreciated at this stage, since it is a disputed question of fact and the same has to be agitated before the trial court. Under such circumstances, finding no ground to quash the proceedings, all the petitions are hereby dismissed by common order. However, the petitioner is at liberty to agitate all the grounds before the trial Court at appropriate time.
8. Accordingly, the Criminal Original Petitions are dismissed. Consequently, connected Miscellaneous Petitions are closed.
ar To
1. Judicial Magistrate No. I, Villupuram
2. District Munsif-cum-Judicial Magistrate, Thirukkalukundram
3. Judicial Magistrate No. II, Vridhachalam