This petition has been filed to call for the records pertaining to C.C.No.1 of 2010 on the file of the Judicial Magistrate No.1, Sivagangai and quash the same.
2. Learned counsel appearing for the petitioner submitted that the petitioner used to obtain money from the respondent for interest and used to give cheques and promissory notes as security; as such, he has given 14 promissory notes and two cheques drawn at Canara Bank and Karur Vysya Bank. It is further stated by learned counsel for the petitioner that the loan amount accumulated to the tune of Rs.5 lakhs till the year 2003, and therefore, on 15.07.2004, the petitioner settled the entire dues to the respondent and demanded the respondent to return the said 14 promissory notes and two cheques; but, the respondent returned only four promissory notes and told that he would return the remaining promissory notes and cheques. Learned counsel for the petitioner further submitted that since the respondent misplaced the cheques and promissory notes, the petitioner approached the respondent several times to get back the said unfilled instruments, but the same were not returned to the petitioner. While so, on 25.10.2009, the respondent demanded Rs.2 lakhs from the petitioner to return the cheques and the remaining promissory notes, for which the petitioner refused and issued a legal notice dated 29.10.2009 not to deposit the cheques and to return the same. The respondent sent a reply with an intention to extract money from the petitioner. It is further contended by learned counsel for the petitioner that thereafter, the respondent sent a statutory notice dated 17.11.2009 to repay the sum of Rs.8 lakh and the petitioner has also replied for the same and sought for return of cheques and also for withdrawal of the notice. Learned counsel for the petitioner further submitted that the respondent subsequently preferred a complaint before the learned Judicial Magistrate No.1, Sivagangai and the same has been taken cognizance in C.C.No.1 of 2010. Hence, the petitioner has come forward with the present petition to quash the complaint filed against him.
3. The learned counsel appearing for the respondent submitted that one of the cheques, dated 06.11.2009, has been presented on 07.11.2009 and the same was returned on 10.11.2009 as 'account closed' and the complaint has been filed on 15.12.2009 within time. Learned counsel for the respondent further stated that the points raised by the learned counsel appearing for the petitioner, are only question of facts, which can be decided only at the time of trial, after letting in oral and documentary evidence and hence, he prayed for the dismissal of the petition.
4. Heard the learned counsel appearing for the petitioner as well as the learned counsel appearing for the respondent and perused the entire materials available on record.
5. A perusal of the records, shows that on 17.11.2009, the respondent issued the statutory notice, stating that when he presented the cheque on 07.11.2009 for encashment, the same was returned on 10.11.2009 as 'accounts closed', which shows that only after closing of the account, with an intention to cheat the respondent/complainant, the cheque had been issued and hence, the respondent has issued notice directing the petitioner to pay the amount, which has been received by the petitioner, for which, the petitioner has also given a reply.
6. It is pertinent to note that the petitioner herein has issued a notice dated 29.10.2009, wherein, he himself has admitted that there is money transaction between both of them, but he repaid the amount. In paragraph No.4 of the said notice dated 29.10.2009, he has stated whenever he received the amount, the respondent used to obtain two unfilled promissory notes and cheques from the petitioner. The petitioner further stated in paragraph No.5 therein that on 15.07.2004, he has settled the entire amount and on demand, a receipt has also been given to the petitioner and the respondent handed over only four promissory notes out of 14. The petitioner pleaded that even though he made many requests, the cheques and the remaining promissory notes were not returned by the respondent. On 25.10.2009, when the respondent demanded money, then only, the petitioner has given a notice, for which, the respondent has sent a reply on 06.11.2009. But, the respondent has stated that he neither received the amount, nor executed the receipt and that the said receipt is a forged one.
7. Considering the exchange of notices between both the parties, as seen from page Nos.1 to 14 of the typed set of papers filed along with this Crl.O.P., admittedly, as per the version of the petitioner, the cheque in question had been issued by the petitioner to the respondent. But, whether the amount has been discharged or not, has to be decided only at the time of trial and not at this stage. Even though the petitioner stated that he has repaid the money on 15.07.2004, he kept quiet all along and only in 2009, the petitioner issued the notice. But, the cheque in question was issued in 2009 and the same was presented and returned.
8. In such circumstances, the argument advanced by the learned counsel appearing for the petitioner that the entire amount due to the respondent was discharged and he obtained a receipt, does not merit acceptance. The petitioner may very well produce the documents before the trial Court to prove his case. Since, it is only a question of fact, it can be decided only after letting in oral and documentary evidence before the trial Court and it is a premature stage to decide the issue now.
9. Even though it is an admitted fact that the petitioner has received the amount on several dates and executed the blank promissory notes and cheques, but the respondent disputed the repayment of the amount by the petitioner. Moreover, the respondent herein has raised a plea of forgery in respect of the receipt, stating that he never received any amount, nor executed a receipt. The theory of repayment and forgery, is to be decided only after letting in oral and documentary evidence, as the same is a question of fact.
10. In the above circumstances, the contentions raised, both by the petitioner and respondent, are only the question of facts, which can be decided only at the time of trial, after letting in oral and documentary evidence before the trial Court. Hence, I am of the considered opinion it is a premature stage now and it is not a fit case for quashing the complaint. So, the Criminal Original Petition is liable to be dismissed.
11. Accordingly, this Criminal Original Petition is dismissed. Consequently, connected miscellaneous petitions are closed.
arul/cs To The Judicial Magistrate No.1, Sivagangai.