This petition is filed to quash the proceedings in S.T.C.No.168 of 2012 pending on the file of the learned District Munsif Cum Judicial Magistrate, Kamudhi, Ramanathapuram District.
2. The complaint is for the offence under Section 138 of Negotiable Instruments Act.
3. The case of the petitioner is that the petitioner and the de facto complainant had business transaction and that the account between the petitioner and the respondent were settled long back. However, the respondent presented a cheque alleged to have been handed over by the petitioner to the respondent on 15.11.2011. Since the cheque was returned with an endorsement ?account closed?, the respondent has given a complaint.
4. The case of the petitioner is that the petitioner is not at all liable. Though the petitioner and the respondent had business dealings it is stated that all disputes were resolved based on a compromise stating that amounts due to the respondent were fully settled on 14.11.2011, and that, the petitioner has closed the Bank account on 04.08.2010. The petitioner described the complaint as one using the signed blank cheque kept by the petitioner in her office. It is further stated that the respondent after long gap of time with an intention to receive the amount filled up the said cheque and presented it for collection. One of the ground raised by the petitioner in this case is with reference to the statutory notice issued by the respondent and in the said notice, the petitioner was called upon to pay the amount of Rs.5,00,000/- within a week from the date of receipt of the cheque.
5. The learned counsel appearing for the petitioner referring the Section 138 of Negotiable Instruments Act and contended that notice does not give 15 days time to the petitioner, as per Section 138 (c) of Negotiable Instruments Act. The said contention is not acceptable having regard to the specific language employed in proviso to Section 138 of Negotiable Instruments Act. The Section 138 of Negotiable Instruments Act reads as follows:-
138. Dishonour of cheque for insufficiency, etc., of funds in the account:- Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is in sufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both:
Provided that nothing contained in this section shall apply unless:-
(a) the cheque has been presented to the bank within a period of six months, from the date on which it is drawn or within the period of its validity, whichever is earlier.
(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the Bank regarding the return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or as the case may be, to the holder in due course of the cheque within fifteen days of the receipt of the said notice.
6. As per proviso to Section 138 of Negotiable Instruments Act, the complaint is maintainable only if the drawer of the cheque do not pay the amount within 15 days form the date of receipt of the notice. No other interpretation is possible. Hence, the contention that the notice is defective and it does not specify the requirement of the Section 138 of Negotiable Instruments Act is absurd.
7. The learned counsel appearing for the petitioner refers to certain factual issues which we cannot deal with at present in the quash the petition.
8. The contentions of the petitioner are all based on probabilities. This Court cannot quash the criminal complaint based on probabilities or on the self serving statements of the accused. This Criminal case is filed in the year 2013 and the proceedings before the lower Court had been dragged on for the past three years without any progress and in view of that, the Criminal Original Petition is dismissed. Consequently, connected Miscellaneous Petitions are closed.
9. The petitioner shall pay a cost of Rs.5,000/-(Rupees Five Thousand only) to the credit of the Hon'ble Chief Justice Relief Fund, Madurai Bench of Madras High Court, Madurai, within a period of two weeks from the date of receipt of a copy of this order.
10. The learned counsel appearing for the petitioner submitted that the personal appearance of the petitioner may be dispensed with having regard to the fact that the petitioner is a woman.
11. Considering the submission made by the learned counsel appearing for the petitioner the personal appearance of the petitioner is dispensed with unless or otherwise the presence of the petitioner is required by the order of the Court.
12. Considering the fact that the complaint is of the year 2012, the Trial Court is directed to complete the trial and dispose of the case within a period of three months from the date of receipt of a copy of this order and report the same to the Registry.
To The District Munsif Cum Judicial Magistrate, Kamudhi, Ramanathapuram District .