ORDER

This petition has been filed to quash the proceedings in C.C.No.203 of 2019, on the file of the Judicial Magistrate, Ambattur for the offence punishable under Section 138 of Negotiable Instrument Act as against the petitioner.

2. The respondent lodged a complaint for the offence punishable under Section 138 of Negotiable Instrument Act, alleging that the petitioner approached him for a hand loan to meet out her business needs and borrowed a sum of Rs.5,00,000/- In order to repay the said amount, the petitioner issued a cheque for a sum of Rs.5,00,000/-. It was presented by the respondent for collection and it was returned for the reason 'fund insufficient'. Thereafter, the respondent issued statutory notice and lodged a complaint.

3. The learned counsel for the petitioner would submit that there is no cause of action to take cognizance on the complaint lodged by the respondent for the offence punishable under Section 138 of Negotiable Instrument Act. The statutory notice issued under Section 138 of Negotiable Instrument Act is not in consonance with the said provision. The notice did not whisper about the payment of cheque amount within the stipulated period. It says immediately from the date of receipt of the notice. Therefore, the petitioner was not even given sufficient time to settle the cheque amount.

4. He further submitted that on receipt of the notice dated

01.10.2018, immediately, the petitioner replied that there was absolutely no liability and no legally enforceable debt from the petitioner. Further stated that the alleged cheque was filled up by the respondent with the knowledge of the petitioner and was presented for collection without her consent. Therefore, in the reply notice, the petitioner called upon the respondent to return the cheque. However, again the said cheque was presented for collection and second notice was issued by the respondent dated 03.12.2018. He further submitted that the cheque can be presented for collection for any number of times before its validity of three months. However, the respondent presented the cheque and again issued second legal notice. Whereas, the learned Magistrate had taken cognizance on the first legal notice dated 01.10.2018. Though, the respondent stated about the second notice dated 03.13.2018, the learned Magistrate had taken cognizance on the strength of the first legal notice dated 01.10.2018. Therefore, the learned Magistrate has no jurisdiction to take cognizance on the complaint lodged by the respondent.

5. The learned counsel for the respondent submitted that the grounds raised by the petitioner can be considered only during the trial since all the grounds are mixed questions of fact. That apart the cheque can be presented for any number of times and accordingly, the respondent presented the cheque for collection for the second time and lodged the complaint.

6. Mr.D.Murthy, learned counsel appearing for the petitioner and Mr.S.Anandakumar, learned counsel appearing for the respondent and perused the materials available on record.

7. A perusal of the complaint reveals that the petitioner issued cheque for a sum of Rs.5,00,000/- and the same was presented for collection on 25.09.2018. It was returned on 26.09.2018 for the reason 'fund insufficient'. Immediately, the respondent issued legal notice through his counsel on 01.10.2018. On receipt of the same, the petitioner issued reply notice stating that there was no legally enforceable debt and also called upon the respondent to return the cheque. However, without sending any re-jointer to the legal notice, the respondent again re- presented the cheque on 16.11.2018 and the same was again dishonoured for the reason that 'funds insufficient'. The respondent again issued a legal notice dated 03.12.2018 and lodged the complaint.

8. However, the learned Magistrate had taken cognizance only on the notice dated 01.10.2018. Therefore, when the second notice was issued on the alleged second return of the cheque, the learned M