N. Murugesan vs ICICI Bank Ltd.

V.S. Ravi, J.—This Criminal Original Petition has been filed by the petitioner to call for the records in C.C. No. 1542 of 2008 on the file of Judicial Magistrate IV, Tirunelveli, and quash the same.

The petitioner has pointed out in the petition that the complaint has been filed without following the mandatory provisions of Section 138 of the Negotiable Instruments Act, 1881.

The point that arises for consideration in this criminal original petition is as follows:-

Whether the petitioner is entitled to get an order to quash the case pending on the file of learned Judicial Magistrate No. IV, Tirunelveli in C.C. No. 1542/2008 for the reasons stated in the petition?

The petitioner has submitted that the respondent bank has filed a complaint under Section 200 Cr.P.C. and Section 138 of Negotiable Instruments Act, which has been taken on file by the learned Judicial Magistrate No. IV, Tirunelveli, in C.C. No. 1542 of 2008, now pending for disposal. Further, the petitioner himself has admitted in the petition that he has applied to the respondent bank for a loan of Rs. 1,00,000/- during 2nd December 2006 and the petitioner has approached the respondent bank for getting loan only at the rate of 10% interest. Further, the petitioner has admitted that the respondent bank has issued a legal notice dated 23.08.2007 to the petitioner, in which it has been stated about the loan amount borrowed by the petitioner. Further, in the typed set papers filed along with the petition, at page number 4, the petitioner has enclosed the legal notice dated 23.08.2007 issued by the respondent bank. Further, the petitioner has stated that the respondent bank has issued the notice to the wrong address and the respondent has failed to file the complaint within the stipulated period.

It is well settled law that this Court can entertain petition under the provision of Section 482 Cr.P.C., and also this Court would be justified in exercising the power to prevent injustice and/or

i) to give effect to an order under the Code;

i) to prevent abuse of the process of Court;

ii) to otherwise secure the ends of justice.

Further, it is also well settled that the extraordinary power under Section 482 Cr.P.C. should be exercised sparingly and with great care and caution. This, Court, in the present matter, is unable to notice any valid reasons to interfere with the said proceedings of the Lower Court. This Court, is also of the view, that the present petition does not have any merit.

On a careful perusal of the entire records, it is found that the case has been filed before the learned Judicial Magistrate No. IV, Tirunelveli, based upon the cheque alleged to be issued by the petitioner and also for the return of the cheque with an endorsement of "insufficient funds". Certainly, it is left open to the parties to work out their legal contentions and remedies before the Lower Court and it is also seen that there is no flagrant abuse of the law.

The powers vested with the High Court under the provisions of Section 482 Cr.P.C. has to be exercised for good reasons and in exceptional cases only. The respondent bank cannot be prevented from taking recourse to a remedy which is available in law. Further, the petitioner himself has admitted that the said case is pending for disposal before the learned Judicial Magistrate No. IV, Tirunelveli. Hence, this Court under the provisions of Section 482 cannot enter into the merits of the case and pronounce orders, upon the truth and correctness with regard to the contentions of the parties. The High Court under the provisions of Section 482 cannot arrive at a conclusion with regard to the merits of the case at a stage prior to letting of the evidence and also records by the parties. Further, the parties should be afforded sufficient opportunity to adduce available evidence and records, before such a conclusion is drawn by the Trial Court. Further, it is not a matter in which, this Court would interfere in exercise of its powers under Section 482 Cr.P.C. especially when the case is at its threshold and evidence has still to be adduced.

The purpose of enactment of Negotiable Instruments Act is to present an orderly and authoritative statement of the leading rules of law relating to the negotiable instruments and the provisions of the Negotiable Instruments Act provide special procedure in case the obligation under the instrument has not been discharged.

Certainly both parties are to be heard before any final order is passed by the Trial Court. However, it is made clear that the present order will not affect the rights of both the parties. On a careful scrutiny of the entire records, this Court is of the opinion that the lower Court has to be directed to proceed with the case and dispose of the case, on merits after hearing both sides.

In the result, the lower Court is directed to proceed with the further proceedings in C.C. No. 1542 of 2008, in accordance with law and dispose of the matter as expeditiously as possible, on merits, after hearing the both parties. Nothing stated herein shall be taken as an expression of opinion on merits of the case of both parties. Further, both the parties are directed to cooperate with the Lower Court for early disposal, as the complaint has been filed in the year 2008. The Registry is directed to send the records to the Lower Court, forthwith. The criminal original petition is disposed of with the above direction. No costs. Consequently, connected miscellaneous petition is closed.