IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 28.08.2009 CORAM:
THE HONOURABLE MR.JUSTICE C.S.KARNAN Crl.O.P.No. 32214 of 2005 and M.P.No.9099 of 2005 T.Kandasamy .. Petitioner Versus P.T.Balu .. Respondent Petition filed under Section 482 Cr.P.C to call for the records and quash the entire proceedings in C.C.No.100/2003 pending on the file of the Judicial Magistrate No.II, Pollachi.
For Petitioner : No appearance For Respondent : Mr. T.Murugamanickam
ORDER
The petitioner/Accused has filed the above Criminal Original Petition to call for the records and quash the entire proceedings in C.C.No.100/2003 pending on the file of the Judicial magistrate No.II, Pollachi.
2. The respondent/complainant has filed the complaint in C.C.No.100/2003 before the Judicial Magistrate No.II, Pollachi against the petitioner/accused for an alleged offence under Section 138 of Negotiable Instruments Act. The ingredients of the complaint was that on 10.10.2001, the petitioner/accused came to the residence of the respondent/complainant herein and borrowed a sum of Rs.2 lakhs, and executed a promissory note for the said sum and interest for the said sum was Rs.1 per month for every Rs.100. Subsequent thereto, on 20.11.2001, the petitioner/accused had borrowed a sum of Rs.1,50,000/- from the respondent/complainant and executed another promissory note for the said sum of Rs.1,50,000/- for the same interest rate of Rs.1 per moth for every Rs.100/-. On 09.11.2002, after much delay, the petitioner/accused issued a cheque for Rs.3,66,000/- drawn on Indian bank branch, Udumalpet, the Cheque bearing No.795197, to the complainant stating that it was towards payment of principal and part interest and also assured the complainant that the balance interest will be paid within three months. The said cheque was presented in the Indian Bank, Samathur Branch on 09.11.2002 and was returned on 18.11.2002 stating that "Funds Insufficient". A legal notice dated 21.11.2002 was sent to the petitioner/accused and a reply notice dated 05.12.2002 was sent by the petitioner/accused through his lawyer, whereunder the peitioner/accused denied the entire allegations in the notice dated 21.11.2002 as false. Pursuant to the said notice, a complaint was preferred by the respondent/ complainant before the learned Judicial Magistrate No.II, Pollachi and the same was taken on file as C.C.No. 100 of 2003.
3. The petitioner has contended that in the sworn statement of complainant before the Judicial Magistrate, the date on which the accused had borrowed Rs.2 Lakhs was given as 10.10.2002 instead of 10.10.2001 and again the date on which the accused had borrowed Rs.1.5 lakhs was given as 20.10.2002 instead of 20.11.2001. The petitioner contends that the sworn statement was duly recorded by the learned Judicial Magistrate No.II, Pollachi and that on the basis of sworn statement of the complainant, the complaint was taken on file and petitioner was examined under Section 313(i)(A) of Criminal Procedure Code and the petitioner/accused deposed that it was a "false case". Thus the petitioner contends that there is a discrepancy in the complaint contained in the lawyer notice and that in the sworn statement, and as such it is a false complaint and that the case is an abuse of process of Court and has to be quashed. Subsequent to this, the petition in C.M.P.No. 2012 of 2003 was filed by the petitioner/ accused on the file of the learned Judicial Magistrate, Pollachi, for discharging him from the complaint. The learned Judicial Magistrate was pleased to dismiss the said CMP.No.2012 of 2003 on the ground of "Clerical Mistake". Thereafter the petitioner filed a Revision petition in Criminal Revision No.167 of 2004 on the file of the District and Sessions Judge, Coimbatore. The learned Additional and Sessions Judge, Fast Track Court No.II, Coimbatore dismissed the said Revision petition on the same ground of "Clerical mistake". Aggrieved by the same, the petitioner has come before this Honourable Court to seek quash of the proceedings in C.C.No.100 of 2003.
4. After considering the ingredients of the complaint and petitioner's contention and after hearing the arguments of the learned counsel for the respondent, the Court is of the view that the learned Magistrate, after applying his mind, has taken the case on his file. The case has been conceived on the basis of the dishonoured cheque. At this stage, the case in C.C.No. 100 of 2003 cannot be quashed. In the interest of Justice, the case has to be tried in accordance with law.
5. Therefore, the Criminal Original Petition No.32214 of 2005 has got to be dismissed. Accordingly it is dismissed.
Consequently, connected Miscellaneous Petition is closed.
28.08.2009 Index:Yes Internet:Yes mps To
1. The Judicial Magistrate No.II, Pollachi.
2. The Public Prosecutor, High Court, Madras-104.
C.S.KARNAN,J mps/mra Crl.O.P.No. 32214 of 2005 28.08.2009