O R D E R

The petitioner, who was arrayed as an accused in a private complaint filed by the respondent for offence under Section 138 of the Negotiable Instruments Act, has filed this Criminal Original Petition seeking to quash the proceedings in S.T.C No.131 of 2022, pending on the file of Fast Track Judicial Magistrate No.1, Erode.

2. The case of the prosecution is that on 09.11.2020, the petitioner / accused borrowed a sum of Rs.12,00,000/- (Rupees Twelve Lakhs only) from the respondent / complainant and agreed to pay interest at the rate of 12% per annum. In discharge of liability, the petitioner / accused issued a post-dated cheque bearing No.00004, dated 19.12.2020 for a sum of Rs.12,00,000/- (Rupees Twelve Lakhs only) drawn on Bank of Baroda, Moolapalayam Branch, Erode. The respondent / complainant presented the same for collection through ICICI Bank, Sathy Road Branch, Erode on 19.12.2020. But the said cheque returned with an endorsement “Kindly Contact Drawer Drawee Bank and Please Present again”. It is further alleged in the complaint that due to return of the said cheque by the Bank, the respondent / complainant sent a legal notice under Section 138(b) of the Negotiable Instruments Act on 12.01.2021 and the same was received by the petitioner / accused on 21.01.2021 and the petitioner / accused issued reply notice dated 03.02.2021. Thereafter, the respondent / complainant issued a rejoinder notice on 13.02.2021, but the petitioner / accused did not pay the amount. Therefore, the respondent / complainant proceeded to file a complaint under Section 138 of the Negotiable Instrument Act.

3. The learned counsel appearing for the petitioner / accused would submit that admittedly the cheque was returned “Kindly Contact Drawer Drawee Bank and Please Present again” and he has produced a return memo issued by the Bank. The learned counsel further submitted that though the cheque has been returned by the Bank, the respondent / complainant ought to have presented the cheque once again after contacting the Drawer Drawee Bank and that this issue has been covered by the judgments of this Court in Sathiya Murthi Vs. Kesava Narayanan in Crl.O.P.No.10406 of 2019 and M/s.Vignesh Builders Vs. M/s.Sastha Associates, in Crl.O.P.No.8664 of 2021 wherein, this Court had quashed the complaint which was filed for a return of the cheque for the very same reason. He further relied upon the judgment of the Hon'ble High Court of Madhya Pradesh in the case of Sachin Dubey Vs. Kishore Sharma reported in 2018 SCC Online MP 1888: (2019) 4 RCR (Cri) 670, wherein the High Court of Madhya Pradesh had allowed the quash petition and hence, he prayed for quashing of the complaint against him.

4. On earlier occasion, though the respondent / complainant has been served with notice and his name printed in the cause list, none appeared on behalf of the respondent either in person or through counsel. Keeping the petition pending from the 2022 without any progress would serve no purpose. Hence, this Court appointed Mr.R.Leelesh Sundaram, as Legal Aid Counsel for the respondent / complainant.

5. The learned Legal Aid Counsel appearing on behalf of the respondent / complainant would submit that the cheque was returned with an endorsement “Kindly Contact Drawer Drawee Bank and Please Present again”. The learned Legal Aid Counsel pointed out that the High Court of Madhya Pradesh quashed the case on the identical ground raised by the petitioner. The grounds raised by the petitioner therein are that firstly, the legal notice not served within a statutory period and secondly, on the basis of the remark noted on the cheque return memo. The said case appealed before the Hon'ble Apex Court in Crl.A.No.1326 of 2019 arising out of SLP (Crl) No.166 of 2019. The Hon'ble Apex Court by judgment dated 03.09.2019 had set aside the impugned judgment of the Madhya Pradesh High Court in the case of Kishore Sharma vs. Sachin Dubey and held that the points raised by the petitioner there