The main legal point established in the judgment is the necessity of giving the accused an opportunity to raise objections and be heard before condoning the delay in filing a complaint under the Negotiable Instrument Act.

G. K. ILANTHIRAIYAN, J.

1. This quash petition is filed to quash the private complaint in S.T.C.No.1871 of 2010 on the file of the Judicial Magistrate Court No.1, Kuzhithurai having been taken cognizance for the offence under Section 138 of Negotiable Instrument Act read with Section 142 of Negotiable Instrument Act as against the petitioner herein.

2. The respondent filed a complaint to punish the petitioner for the offence under Section 138 of Negotiable Instrument Act read with Section 142 of Negotiable Instrument Act, alleging that the petitioner and the respondent are friends. On 04.10.2009, the petitioner approached the respondent/complainant and requested to lend a sum of Rs. 2 lakhs for his family need. The petitioner also agreed to repay the same, within a month. The respondent lent a sum of Rs. 2 lakhs to the petitioner and towards repayment of the said loan, the petitioner issued a cheque bearing No.083190 dated 10.11.2009 drawn on Indian Overseas Bank, Marthandam Branch. On instructions, the said cheque was presented through the respondent bank and the same was returned for the reason "funds insufficient". Thereafter, he also issued statutory notice to the petitioner and even after receipt of the same, the petitioner did not repay the amount. Therefore, he filed the complaint along with condone delay petition in Crl.M.P.No.4040 of 2010 on the file of the Judicial Magistrate No.1, Kuzhithurai. The learned Judicial Magistrate condoned the delay and had taken cognizance punishable under Section 138 of the Negotiable Instrument Act against the petitioner and issued the summons. The entire proceedings is under challenge in this quash petition.

3. The learned counsel appearing for the petitioner would submit that the respondent issued statutory legal notice as mandated under Section 138 of the Negotiable Instrument Act by addressing a wrong person instead of the petitioner. Therefore, the mandatory requirements under Section 138 of the Negotiable Instrument Act is not complied with and as such, the complaint is not maintainable as against the petitioner herein. He would further submit that the complaint has been filed with the condone delay petition in Crl.M.P.No.4040 of 2010, wherein, the learned Judicial Magistrate without even ordering notice and without giving any opportunity of hearing to the petitioner, mechanically allowed the same and had taken cognizance against the petitioner herein. Therefore, he prayed for quashing the entire proceedings.

4. The learned counsel appearing for the respondent would submit that the petitioner after borrowal of Rs. 2 lakhs, he issued a cheque towards repayment of the said amount and the said cheque was presented through his bank. The said cheque was returned dishonoured with an endorsement of insufficient funds. Therefore, with the dishonest intention to cheat the respondent, he issued a cheque and as such, he is liable to be punished. He would further submit that the statutory notice has been sent to correct address and correct person and after knowing the statutory notice, the petitioner cleverly returned the same to the sender. Therefore, the respondent completed the mandatory requirements as required under Section 138 of the Negotiable Instrument Act. Further, he would submit that the delay in filing the complaint is between the Court and the complainant and as such, no need to issue any notice and no opportunity should be given to the respondent. Therefore, the learned Judicial Magistrate rightly had taken cognizance for the offence under Section 138 of the Negotiable Instrument as against the petitioner herein. Therefore, he sought for dismissal of the quash petition.

5. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent and perused the materials available on record.

6. Admittedly, the complaint has been filed along with delay. It is also curious to note that there is no mentioning of number of days of delay caused t