P.S.A. Rafick Ahamed vs P. Karuppusamy

S. Vaidyanathan, J.—This petition is filed seeking a direction to quash the complaint in S.T.C. No. 31 of 2015 on the file of the Judicial Magistrate, Fast Track Court at Magistrate Level, Thanjavur.

The respondent herein as complainant lodged a complaint before the Judicial Magistrate, Fast Track Court at Magistrate Level, Thanjavur under Section 138 of the Negotiable Instruments Act, alleging that for discharging the debt received by the petitioner herein, he issued cheques to the respondent and the same were returned with an endorsement ''insufficient fund''.

The case of the petitioner is that since he incurred heavy loss in his business and he is not in a position to repay the debts to the lenders, he has filed Insolvency Petition before the Principal Subordinate Judge, Thanjavur in I.P. No. 4 of 2014, praying to declare him as an insolvent and the same is pending and knowing the same, the respondent hurriedly filled up the blank cheques and presented the same before the bank. The petitioner has also repaid a portion of the amount to the respondent. But, the respondent threatened him with goondas and in this regard, the petitioner lodged a complaint before the police. The petitioner had issued the blank cheques only towards security. The respondent has filed the present complaint, so as to harass the petitioner. Therefore, the petitioner has come forward with the present petition to quash the complaint.

The counsel for the petitioner placed reliance on Section 138 of the Negotiable Instruments Act, 1881 and the same reads as follows:

"138. Dishonour of cheque for insufficiency, etc., of funds in the account.-Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may extend to one year, or with fine which may extend to twice the amount of the cheque, or with both:

Provided that nothing contained in this section shall apply unless-

(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier.

(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer of the cheque, within fifteen days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and

(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice".

The counsel for the petitioner submitted that when it is a post-dated cheque, which was drawn earlier, the date of drawing of the cheque, irrespective of the date mentioned, shall be taken into account and for the cheque presented after six months from the date of drawing, irrespective of the date mentioned therein, even if it is a post-dated cheque, the petitioner cannot be foisted with any liability and the petitioner cannot be penalized under Section 138 of the Negotiable Instruments Act.

It is an admitted case that the petitioner has borrowed money. The legal submission of the petitioner that the date of drawing of the cheque, irrespective of the date mentioned, shall be taken into account and for the cheque presented after six months from the date of drawing, irrespective of the date mentioned therein, even if it is a post dated cheque, the petitioner cannot be foisted with any liability, cannot be accepted. The dispute raised by the petitioner is a pre-matured one. In the Judgment of the Hon''ble Supreme Court in HMT Watches Ltd. Vs. M.A. Abida and Others , it has been held that quashing of criminal complaint on disputed question of facts cannot be entertained and it is a matter for the trial to proceed with the criminal complaints. The Hon''ble Supreme Court has also categorically held that both parties have to work out their remedy before the Trial Court and therefore this Court shall not interfere with the proceedings at the initial stage. Hence, this Court finds no merit in the submission made by the counsel for the petitioner and accordingly, this Criminal Original Petition is dismissed. Consequently, connected Miscellaneous Petition is dismissed.

The Judicial Magistrate, Fast Track Court at Magistrate Level, Thanjavur is directed to take up S.T.C. No. 31 of 2015 and dispose of the same as expeditiously as possible and the Trial Court shall not adjourn the matter for more than three working days at any point of time. The pendency of the Insolvency Petition is not a bar to proceed further in S.T.C. No. 31 of 2015. The observation made in this petition is only for the purpose of the dismissal of this Criminal Original Petition and it is open to the petitioner to raise all the grounds available to him before the Trial Court. Considering the facts and circumstances of the case, this Court directs the Trial Court to dispense with the personal appearance of the petitioners before it, upon the petitioners swearing to an affidavit informing their address for service, that they duly would be represented by their counsel on all hearing dates, that they would, at no instance, dispute their identity and that, they would appear before the Trial Court, as and when required. Upon the petitioners doing so, the Trial Court may seek the presence of the petitioners before it, solely on the important hearing dates.