This writ petition has been filed praying for a writ of Certiorari to call for the records relating to the order of the Judicial Magistrate No.V, Madurai, dated 2.6.2006, made in S.T.C.No.692 of 2003, and to quash the same.
2. The petitioner has stated that he is employed in the Southern Railways in S.E/W/O/Madurai, as a Kalasi, Since the petitioner had known the respondent for several years, he had borrowed a sum of Rs.10,000/- from him for the purpose of providing medical attention to his wife, who was suffering from serious illness, in the year, 2002. Even though the petitioner had been paying the interest for the borrowed amount, regularly, the respondent had demanded the payment of the entire loan amount. Since the petitioner's wife had died, in spite of the medical treatment given to her, the petitioner had sought for some time to repay the loan amount. However, the respondent had insisted that the petitioner should issue a blank cheque as a security for the borrowed amount.
3. The petitioner had further stated that he had repaid the entire amount of Rs.10,000/-, to the respondent, along with the interest in the month of June, 2003, The respondent had not returned the cheque given to him by the petitioner. In fact, he had filled up the cheque, as though the petitioner had issued a cheque for Rs.60,000/- bearing the date 4.8.2003. Thereafter, the respondent had issued a notice, on 8.8.2003, stating that the cheque had been dishonoured. Thereafter, a case has been registered against the petitioner, in S.T.C.No.692 of 2003, in the year, 2005. On hearing the matter, the Judicial Magistrate No.V, Madurai, had found the petitioner guilty of the offence, under section 138 of the Negotiable Instruments Act, 1881, and had also imposed the punishment of three months Rigorous imprisonment and a fine of Rs.5,000/-. In such circumstances, the petitioner had preferred the present writ petition before this Court, under
Article 226 of the Constitution of India to quash the order, dated 2.6.2006, passed by the Judicial Magistrate No.V, Madurai, in S.T.C.No.692 of 2003.
4. The main contention of the learned counsel appearing for the petitioner is that the imposition of three months Rigorous imprisonment on the petitioner by the Judicial Magistrate No.V, Madurai, is arbitrary, illegal and void. He had stated that
Section 53 of the Indian Penal Code, relating to the 'punishment' that could be imposed on the offenders, contemplates two kinds of imprisonment,namely, simple imprisonment and Rigorous imprisonment, in respect of the various offences contemplated under the provisions of the said Code. However, Section 138 of the Negotiable Instruments Act, 1881, does not contemplate the imposition of Rigorous imprisonment on a defaulter. If at all, the Judicial Magistrate No.V, Madurai, would have imposed only a sentence of simple imprisonment on the petitioner. The procedure contemplated in respect of the offence under section 138 of the Negotiable Instruments Act, 1881, is only a summons procedure relating to non cognisable offences. The Judicial Magistrate No.V, Madurai, had not given sufficient reasons to impose the sentence of Rigorous imprisonment on the petitioner.
5. The learned counsel appearing for the petitioner had further submitted that the learned Judicial Magistrate No.V, Madurai, had failed to given an opportunity to cross examine the prosecution witness, which has caused serious prejudice to the petitioner leading to miscarriage of justice. Since the sentence of Rigorous imprisonment has not been contemplated, under Section 138 of the Negotiable Instruments Act, 1881, the Judicial Magistrate No.V, Madurai, could not have opted to impose such a sentence on the petitioner. Since the sentence imposed by the Judicial Magistrate No.V, Madurai, is contrary to the provisions of the Indian Penal Code, the Negotiable Instruments Act, 1881, and the provisions of the Constitution of India, it is a clear violation of the principles of natural justice, the petitioner had preferred the present writ petition, under
Article 226 of the Constitution of India.
6. The learned counsel appearing for the petitioner had relied on the decision of the High Court of Kerala, reported in OMANAKUTTAN PILLAI Vs. STATE OF KERALA (2001) M.L.J. (Crl) 495), in support of his contentions,
7. There is no representation on behalf of the respondent. No counter affidavit has been filed on behalf of the respondent.
8. In view of the submissions made by the learned counsel appearing for the petitioner, this Court is of the considered view that the writ petition is not maintainable, as it had been filed only against the private individual, who was the complainant in S.T.C.No.692 of 2003, on the file of the Judicial Magistrate No.V, Madurai, relating to the dishonour of a cheque, said to have been issued by the petitioner, under Section 138 of the Negotiable Instruments Act, 1881. Further, an alternative remedy has been provided for by the provisions of the Criminal Procedure Code, There is no provision of law prohibiting the concerned Magistrate to impose a sentence of Rigorous imprisonment on a defaulter in a complaint relating to the dishonour of a cheque, under Section 138 of the Negotiable Instruments Act, 1881. In fact, the petitioner had the option of challenging the proceedings of the Judicial Magistrate No.V, Madurai, by invoking the procedures established by the provisions of the Criminal Procedure Code, Therefore, it is not open to the petitioner to invoke the jurisdiction of this Court, under
Article 226 of the Constitution of India.
9. For the above said reasons, the writ petition is liable to be dismissed. Hence, it is dismissed. However, it would be open to the petitioner to seek an appropriate remedy before the appropriate forum, in the manner known to law. Consequently, connected M.P.(MD) No.1 of 2006 is closed. No costs.
lan To:
The Judicial Magistrate No.V Madurai