K. Mahaboob Jan vs Dayakaran

Pratap Singh, J.—The accused in C.C. No. 8762 of 1993, on the file of the XIVth Metropolitan Magistrate, Egmore, Madras, has filed this

petition u/s 482 of the Criminal Procedure Code, 1973, to call for the records in the above case and quash the same.

The short facts are : the respondent has filed the private complaint against the petitioner for an offence u/s 138 of the Negotiable Instruments

Act, 1881 (which I shall hereafter refer to as ""the Act""). The allegations in its are briefly as follows :

The accused borrowed Rs. 40,000 on May 11, 1992, and executed a pronote and deposited his title deeds. He borrowed another sum of Rs.

20,000 on June 25, 1993. The accused did not pay any amount towards the above. Towards the above loan, the accused gave a cheque for Rs.

60,000 on July 21, 1993. At the time of issuing the cheque, the accused told that the cheque will be duly honoured on presentation. The

complainant presented the cheque on July 21, 1993. It was returned unpaid due to insufficiency of funds in the account of the accused, with an

endorsement ""payment stopped by the drawer"". On enquiry, the complainant found out that there were no funds in the account of the accused even

at the time of issuing the cheque and at the time the cheque went for collection. The complainant sent a notice on August 2, 1993, calling upon the

accused to repay the entire amount covered by the cheque within 15 days from the receipt of the notice. Knowing the contents of the notice, the

accused refused to receive the notice and the same was returned unserved with an endorsement ""refused, return of sender"". Hence, the complaint.

Learned counsel appearing for the petitioner would submit that the cheque was obtained by taking the petitioner to the police station by threat

and coercion exercised by the police officials. He would further submit that according to the complaint there was a pronote and deposit of the

deeds for Rs. 40,000 and regarding the other loan of Rs. 20,000 there was no record and that would show that the said loan of Rs. 20,000 is

false. He would further submit that the cheque was returned with the endorsement ""payment was stopped by the drawer"" and hence the offence

was not committed.

I have carefully considered the submissions made by learned counsel. To substantiate the submission that the cheque was obtained under

compulsion and coercion and not for discharge of legal liability, learned counsel would rely upon the copy of the complaint given to the

Commissioner of Police, Madras, and the copy of the letter sent to the bank, which he now produced in court. These two documents are not

referred to in the complaint. Whether the cheque was obtained in the manner stated by learned counsel or as alleged in the complaint can be gone

into only at the time of trial and not now. While so, on that ground, it cannot be quashed at the threshold.

Regarding the second submission, that only Rs. 40,000 was due under pronote and regarding the alleged debt of Rs. 20,000 there is no

document, here again I have to say that when there is an allegation in the complaint that there was a further loan of Rs. 20,000 whether it was a

genuine claim or a false claim can be gone into only at the time of trial. Because of the claim that it was not a true debt the complaint cannot be

quashed at the threshold.

Regarding the endorsement of return ""stop payment"" as per the allegations made in para 4 of the complaint, the cheque was returned unpaid due

to insufficiency of funds in the account of the accused with an endorsement ""payment stopped by the drawer"". Then again, there are allegation in

para 5 of the complaint to the effect that the complainant on enquiry found out that there were no funds in the account of the accused even at the

time of issuing the cheque and at the time when the cheque went for collection. In view of these further allegations made in paras 4 and 5 of the

complaint, the matter can be gone into only at the time of trial whether the cheque was returned really for want of funds or because the payment

was stopped by the drawer.

Since none of the submissions made by learned counsel finds acceptance with me, the inevitable result is that this petition does not deserve

admission and small stand dismissed.