Dr. J. Gopalakrishnan Vs. Smt. N. Shanthi - Court Judgment

Excerpt:
- b. akbar basha khadiri, j. 1. the instant criminal original petition has arisen in this way : the respondent shanthi instituted proceedings in c.c. no. 1117 of 1998 on the file of the 13th metropolitan magistrate, egmore, by preferring a private complaint under section 200 of the criminal procedure code, 1973, for an alleged offence committed by the petitioner herein under section 138 of the negotiable instruments act. according to her, the petitioner issued a post-dated cheque on july 18, 1997, for rs. 20,00,000 and when the cheque was presented in the bank, it was returned with an endorsement 'exceeds arrangements'. the respondent/complainant issued a statutory notice on december 11,1997, which the petitioner/accused received on december 13, 1997. according to her, since there was no payment even after efflux of the statutory period, she had preferred a private complaint. 2. the petitioner/accused seeks to quash the proceedings on the ground that it is not as if he was not prepared to make payment, but he was prohibited from making any payment to the respondent-complainant by a mandate issued by the income-tax department, in other words, only due to the prohibition order issued by the statutory authority, he could not make the payment and, therefore, non-payment would not attract the provisions of section 138 of the negotiable instruments act.3. heard both the sides. it is not in dispute that the respondent herein had issued the statutory notice on december 11,1997, which was received by the petitioner on december 13, 1997. the petitioner has produced a copy of the order passed by the assistant commissioner of income-tax, dated december 18, 1997, wherein it is stated that the petitioner should not make any payment to the respondent without seeking the permission of the income-tax authority. a similar mandate has been issued against the respondent/ complainant also that she should not receive any money towards the debt for a period of six months.4. time and again, this court has reiterated that the cardinal principle for quashing the proceedings is to avoid the abuse of the process of law by either of the parties. in the case of a complaint wherein the complaint docs not disclose any offence or is frivolous, vexatious or oppressive, this court can interfere with it. if the allegations set out in the complaint do not constitute the offence of which cognizance is taken by the magistrate, this court can quash the same in exercise of the inherent powers under section 482 of the criminal procedure code. it is not necessary that there should be a meticulous analysis of the case, before the trial to find out whether the case would end in conviction or not. in the instant case, a careful reading of the complaint would clearly indicate that the complaint would make out a prima facie case.5. learned counsel for the petitioner submitted that at the time when the quash petition is considered, this court can take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. in support of his contention, learned counsel for the petitioner cited a decision reported in madhavrao jiwaji rao scindia v. sambhajirao chandrojirao angre, : wherein their lordships have held so.6. the special feature put forth by learned counsel for the petitioner is that the payment has not been made, because there is a prohibition from a statutory authority. the question whether payment could not be made only due to the mandate issued by the income-tax authorities, has to be considered at the time of the trial by the trial court. suffice it to mention that the petitioner himself has accepted that such mandate was issued on december 18,1997. whereas the statutory notice was issued on december 11,1997, further, the question whether or not payment was withheld only on the mandate has to be considered, because the cheque appears to have been returned for want of funds. further, the question whether the petitioner could have obtained permission from the income-tax authorities to make payment, has to be considered at the time of the trial. i feel, at this stage, this court cannot go into the aspect whether only because the petitioner was prohibited by the mandate of the income-tax department, he could not make payment and that would lake out the case from and out of the provision of section 138 of the negotiable instruments act.7. the next point urged by learned counsel for the petitioner is that the cheque itself was issued as security for the borrowing. of course, a copy of the agreement purported to have been entered into between the petitioner and the respondent is found in the typed set of papers. as per the provisions of the negotiable instruments act, there is a-presumption that every negotiable instrument which is accepted to have been drawn is supported by consideration. the question whether the cheque was issued as a security, has to be considered by the trial court on the basis of the evidence let in before it. in short, it appears, what the petitioner should plead by way of defence before the trial court, is now urged to quash the proceedings. i feel, his defence cannot be considered here. he has to put forth his defence before the trial magistrate. in that view of the matter, lam inclined to dismiss the criminal original petition.8. in the result, this criminal original petition is dismissed. consequently. crl.m.p. nos. 4343 and 344 of 1999 are also dismissed.