B. Pari and anr. Vs. R. Murali - Court Judgment

Excerpt:
- orderv. kanagaraj, j.1.the above criminal original petition has been filed under section 482 of cr.p.c. to call for the records and quash the proceedings in c.c. no. 152 of 2002 on the file of the judicial magistrate no. ii, cuddalore.2. the allegation of the complainant/respondent is that the first petitioner, who is the partner of the second petitioner, had issued three cheques for a total sum of rs. 2,50,000/- to the respondent; that the cheques presented in the bank by the respondent were returned with an endorsement 'exceeds arrangement'; that further they were re-presented on 4-3-2002 in the indian overseas bank, manjakuppam branch, cuddalore-1, but in vain; and hence the complaint.3. on the other hand, the petitioners submit that the respondent issued a legal notice to the petitioners, who in turn, questioned that having paid rs. 2,00,000/- out of rs. 2,50,000/- the legal notice should not have been issued to them; that the respondent asked the petitioner to take it easy since it was sent by some of their staff due to oversight and insisted them to pay the balance amount of rs. 50,000/-; that believing the words of the complainant, they did not take the legal notice seriously; and that he failed to reply the same.4. further, the petitioners would submit that they have paid the balance of rs. 50,000/- also through cash and dd on 20-4-2002; that the respondent had acknowledged the payments made by them, the details of which are given hereunder :a) rs. 1,00,000/- dd no. 006736 dt. 12-10-2001b) rs. 50,000/- dd no. 135078 dt. 14-12-2001c) rs. 27,000/- dd no. 138519 dt. 1-2-2002d) rs. 3,000/- cash dt. 1-2-2002e) rs. 20,000/- dd no. 140152 dt. 1-3-2002f) rs. 25,000/- cash dt. 20-4-2002g) rs. 25,000/- dd no. 552741 dt. 20-4-20025. the petitioners further submit that though they asked the respondent to return the post dated cheques, they have not returned the same and that they misused the said cheques; that since there is no legally enforceable debt for the complainant, the offence will not attract section 138 of the negotiable instruments act and hence, the petitioners would pray to quash the aforementioned proceedings,6. during arguments, learned senior counsel appearing on behalf of the petitioner would not only lay emphasis on the pleadings in the above petition, but also would further lay stress on the second presentment of the cheques in issue and would pray to quash the proceedings in c.c. no. 152 of 2002.7. on the part of the respondent, he would only argue to the effect that it is an admitted case of the petitioner that the cheques have been issued by them, and therefore, there is no question of denying the responsibility. learned counsel would also deny the repayment of amounts through demand drafts as it has been claimed on the part of the respondents and would ultimately pray to dismiss the above petition.8. in consideration of the facts pleaded, having regard to the materials placed on record and upon hearing the learned counsel for both, what comes to be known is that as per the complaint in c.c. no. 152 of 2002, the petitioners have issued three cheques, the first one for a sum of rs. 1 lakh dated 5-9-2001, the second one for a sum of rs. 1 lakh dated 11-9-2001 and the third one for a sum of rs. 50,000/- dated 16-11-2001, thus for a total sum of rs. 2.5 lakhs towards the debt or other liability as pleaded by the de facto complainant, the respondent herein.9. on the other hand, it is an admitted case on the part of the respondent that for the first time, all these three cheques were sent for collection on 6-9-2001, 11-9-2001 and 16-11-2001 respectively, but they were returned unpaid with remarks 'exceeds arrangement'. however, the respondent would come forward to admit that on demand, the petitioners wanted one month's time for depositing the amount in the bank so as to honour the cheques, as a result of which, for the second time, all the three cheques were sent for encashment on 4-3-2002 and again they were returned unpaid with the same remarks 'exceeds arrangement' as on 7-3-2002 and 8-3-2002 respectively and hence, the respondent has come forward to file the above case seeking to punish the petitioners in accordance with sections 138 and 142 of the negotiable instruments act.10. from the above admitted facts of the respondent as per his complaint filed before the trial court, it is clear that all the three cheques in question have been presented twice as aforementioned and both the times, they got returned unpaid for insufficiency of funds and only after the return of the cheques unpaid for the second time, the respondent has come forward to file the calandar case before the trial court, which is inadmissible in law, since already on the first presentment and after return of the cheques with the remarks 'exceeds arrangement', the cause of action arose and the time started running against the respondent, and the mandatory notice contemplated under section 138 of the negotiable instruments act having not been issued in time so as to register the complaint within the time stipulated by law, the second cause of action cannot arise as it has been wrongly taken for granted on the part of the respondent, and it cannot give rise for a second cause of action so as to register the case under section 138 of the negotiable instruments act so far as the cases connected to the bouncing of the cheques for insufficiency of funds within the meaning of the provisions of law under sections 138 and 142 of the negotiable instruments act are concerned.11. needless to mention that the case registered in c.c. no. 152 of 2002 on the file of the court of judicial magistrate no. ii, cuddalore, cannot either be entertained or proceeded with for the offence contemplated under sections 138 and 142 of the negotiable instruments act, as a result of which, the above petition seeking to quash the said proceedings has to be allowed, quashing c.c. no. 152 of 2002 and the same is ordered accordingly.in result, the above criminal original petition succeeds and the same is allowed.the case in c.c. no. 152 of 2002 on the file of the court of judicial magistrate no. ii, cuddalore, is hereby quashed.consequently, crl. m. p. no. 7344 of 2002 is closed.

Judgment:
ORDER

V. Kanagaraj, J.

1.The above Criminal Original Petition has been filed under Section 482 of Cr.P.C. to call for the records and quash the proceedings in C.C. No. 152 of 2002 on the file of the Judicial Magistrate No. II, Cuddalore.

2. The allegation of the complainant/respondent is that the first petitioner, who is the partner of the second petitioner, had issued three cheques for a total sum of Rs. 2,50,000/- to the respondent; that the cheques presented in the bank by the respondent were returned with an endorsement 'Exceeds arrangement'; that further they were re-presented on 4-3-2002 in the Indian overseas Bank, Manjakuppam Branch, Cuddalore-1, but in vain; and hence the complaint.

3. On the other hand, the petitioners submit that the respondent issued a legal notice to the petitioners, who in turn, questioned that having paid Rs. 2,00,000/- out of Rs. 2,50,000/- the legal notice should not have been issued to them; that the respondent asked the petitioner to take it easy since it was sent by some of their staff due to oversight and insisted them to pay the balance amount of Rs. 50,000/-; that believing the words of the complainant, they did not take the legal notice seriously; and that he failed to reply the same.

4. Further, the petitioners would submit that they have paid the balance of Rs. 50,000/- also through cash and DD on 20-4-2002; that the respondent had acknowledged the payments made by them, the details of which are given hereunder :

a) Rs. 1,00,000/- DD No. 006736 dt. 12-10-2001b) Rs. 50,000/- DD No. 135078 dt. 14-12-2001c) Rs. 27,000/- DD No. 138519 dt. 1-2-2002d) Rs. 3,000/- Cash dt. 1-2-2002e) Rs. 20,000/- DD No. 140152 dt. 1-3-2002f) Rs. 25,000/- Cash dt. 20-4-2002g) Rs. 25,000/- DD No. 552741 dt. 20-4-2002

5. The petitioners further submit that though they asked the respondent to return the post dated cheques, they have not returned the same and that they misused the said cheques; that since there is no legally enforceable debt for the complainant, the offence will not attract Section 138 of the Negotiable Instruments Act and hence, the petitioners would pray to quash the aforementioned proceedings,

6. During arguments, learned senior counsel appearing on behalf of the petitioner would not only lay emphasis on the pleadings in the above petition, but also would further lay stress on the second presentment of the cheques in issue and would pray to quash the proceedings in C.C. No. 152 of 2002.

7. On the part of the respondent, he would only argue to the effect that it is an admitted case of the petitioner that the cheques have been issued by them, and therefore, there is no question of denying the responsibility. Learned counsel would also deny the repayment of amounts through demand drafts as it has been claimed on the part of the respondents and would ultimately pray to dismiss the above petition.

8. In consideration of the facts pleaded, having regard to the materials placed on record and upon hearing the learned counsel for both, what comes to be known is that as per the complaint in C.C. No. 152 of 2002, the petitioners have issued three cheques, the first one for a sum of Rs. 1 lakh dated 5-9-2001, the second one for a sum of Rs. 1 lakh dated 11-9-2001 and the third one for a sum of Rs. 50,000/- dated 16-11-2001, thus for a total sum of Rs. 2.5 lakhs towards the debt or other liability as pleaded by the de facto complainant, the respondent herein.

9. On the other hand, it is an admitted case on the part of the respondent that for the first time, all these three cheques were sent for collection on 6-9-2001, 11-9-2001 and 16-11-2001 respectively, but they were returned unpaid with remarks 'exceeds arrangement'. However, the respondent would come forward to admit that on demand, the petitioners wanted one month's time for depositing the amount in the bank so as to honour the cheques, as a result of which, for the second time, all the three cheques were sent for encashment on 4-3-2002 and again they were returned unpaid with the same remarks 'exceeds arrangement' as on 7-3-2002 and 8-3-2002 respectively and hence, the respondent has come forward to file the above case seeking to punish the petitioners in accordance with Sections 138 and 142 of the Negotiable Instruments Act.

10. From the above admitted facts of the respondent as per his complaint filed before the trial Court, it is clear that all the three cheques in question have been presented twice as aforementioned and both the times, they got returned unpaid for insufficiency of funds and only after the return of the cheques unpaid for the second time, the respondent has come forward to file the calandar case before the trial Court, which is inadmissible in law, since already on the first presentment and after return of the cheques with the remarks 'exceeds arrangement', the cause of action arose and the time started running against the respondent, and the mandatory notice contemplated under Section 138 of the Negotiable Instruments Act having not been issued in time so as to register the complaint within the time stipulated by law, the second cause of action cannot arise as it has been wrongly taken for granted on the part of the respondent, and it cannot give rise for a second cause of action so as to register the case under Section 138 of the Negotiable Instruments Act so far as the cases connected to the bouncing of the cheques for insufficiency of funds within the meaning of the provisions of law under Sections 138 and 142 of the Negotiable Instruments Act are concerned.

11. Needless to mention that the case registered in C.C. No. 152 of 2002 on the file of the Court of Judicial Magistrate No. II, Cuddalore, cannot either be entertained or proceeded with for the offence contemplated under Sections 138 and 142 of the Negotiable Instruments Act, as a result of which, the above petition seeking to quash the said proceedings has to be allowed, quashing C.C. No. 152 of 2002 and the same is ordered accordingly.

In result, the above criminal original petition succeeds and the same is allowed.

The case in C.C. No. 152 of 2002 on the file of the Court of Judicial Magistrate No. II, Cuddalore, is hereby quashed.

Consequently, Crl. M. P. No. 7344 of 2002 is closed.