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P. Ganapathy vs A. Marimuthu Pillay

Madras High Court · Decided on 10 February 1999 · Citation: (2000) 1 CivCC 540 : (1999) CriLJ 2933 : (1999) 1 CTC 527 : (1999) 4 RCR(Criminal) 124

HON’BLE JUDGES
M. Karpagavinayagam, J
ACTS & SECTIONS REFERRED
Criminal Procedure Code, 1973 (CrPC) — Section 245 · Negotiable Instruments Act, 1881 (NI) — Section 138, 139
CASE NUMBER
Criminal R.C.No. 76 of 1999 and Criminal M.P.No. 738 of 1999
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Judgment

17 paragraphs · 341 words

M. Karpagavinayagam, J.—This Revision is directed against the order of the Judicial Magistrate No.II, Nagercoil dated 19.1.99 dismissing

the application filed by the petitioner/accused praying for discharge.

2.

Mr.N. Rajan, the learned counsel for the petitioner, on the strength of the decisions in James Khan and another v. Thomas cook India Ltd,

1995 (1) L.W. 277; K. Kumar v. M/s. Bapsons Foot wear, 1993 L.W. 600 and Uplanche Mallikarjun v. Rat Kanti Vimala, 1997 Cri. L.J. 4237

would contend that in the case filed against the petitioner by the respondent/complainant for the offence u/s 138 of Negotiable Instruments Act,

there is no material to show that there exists a legal debt or liability and for the discharge of the same, the cheque was issued and that therefore, the

petitioner ought to have been discharged by the trial court.

3.

I do not agree with the above contention on two grounds. Firstly, according to the complaint, the petitioner borrowed a loan of Rs.1,25,000 on

28.12.97 and towards discharge of the said loan, the cheque dated 28.3.98 was issued and on 3.4.98, the cheque was dishonoured. Therefore at

this stage, it cannot be stated that there is no material to show the existence of a legal debt or liability, especially in the light of Section 139 of the

Negotiable Instruments Act, which creates presumption with reference to the discharge of liability.

4.

Secondly, the petition for discharge u/s 245 Cr.P.C. was filed before the trial court after P.W.1 was examined in chief. Once the trial

commenced, the trial court cannot discharge the accused u/s 245 Cr.P.C. that too, in a summon proceedings.

5.

Therefore, the trial court must be allowed to continue the trial and consider the question as to whether the allegation with reference to the

issuance of the cheque towards the discharge of the liability is true or not. At this stage, for the reasons stated above, I am not inclined to interfere

with the impugned order.

6.

In the result, the Revision is dismissed. Consequently, Crl.M.P.No.738 of 1999 stands dismissed.