IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 14.10.2024 CORAM THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN Crl.O.P.No.19572 of 2024 & Crl.M.P.Nos.11456 & 114560 of 2024 Mrs.Nirmala Samuel. ... Petitioner/Accused /versus/

R.Sellapandian. ... Respondent/Complainant Prayer: Criminal Original Petition is filed under Section 528 of BNNS, 2023 to quash the complaint in STC.No.150/2021 on the file of Judicial Magistrate-II, Gopichettipalayam.

For Petitioner : Mr.Aravind Subramanian, Senior Counsel, for Ms.Kannammai For Respondent : Mr.B.Gopalakrishnan

O R D E R

The petitioner herein is an accused in the complaint filed under Section 138 of N.I Act.

2. The petitioner herein seeks quash of the above complaint stating that the subject cheque was not given for any discharge of liability and it was lost long before the date it bears and police complaint was given about missing of cheque along with other cheques. The complainant had filled up the date and filed the complaint. This fact though been brought to the notice of the complainant soon after the receipt of the statutory notice, without adverting to the said explanation and denial of liability, the complaint been filed. 3. The case of the complainant is that the complainant and the accused/petitioner known to each other for more than 8 years and there was money transaction between them. On 01.02.2016, the petitioner/accused borrowed Rs.10,80,000/- as hand loan and gave subject cheque bearing No.000047 dated 06.02.2016 drawn at HDFC Bank, Gopichettipalayam Branch to discharge the said hand loan. When the said cheque was presented for collection, it was returned with endorsement “stop payment”. After causing statutory notice, the complaint been filed for necessary action under Section 138 of N.I Act r/w 357 (3) of Cr.P.C.

4. The case of the petitioner/accused is that the said cheque along with other cheques was lost on 02.10.2015 when the petitioner went to shopping at Gopichettipalayam. In this regard, a complaint to the Gopichettipalayam Police Station was lodged in C.S.R.No.811/2015 and non traceable certificate was issued by the Sub-Inspector of Police on 19.11.2015. While the fact being so, the complainant who is not known to the petitioner in any manner, had presented the cheque by filling up the amount and date. There is no money transaction between the complainant and the accused as alleged and the cheque was not issued for any discharge of enforceable debt but misused by the finder of the lost cheque with malicious intention.

5. Perusal of the documents particularly the statutory notice and the reply clearly indicates that while the complainant claims that the cheque was issued on 06.02.2016 for the hand loan received on 01.02.2016, the C.S.R receipt, Non-Traceable Certificate as well as the reply notice clearly establish the fact that the cheque bearing No.000047 lost by the accused on 02.10.2015 itself and the petitioner suspects one Mr.G.K.Bharathi, Former Counsel had somehow got possession of the lost cheque through the complainant who has filed the complaint under Section 138 of N.I Act.

6. The evidence of the complainant and the proof affidavit filed in lieu of chief examination conspicuously silent about the manner in which the cheque came into the possession of the complainant when the reply notice of the petitioner/accused has clearly stated that the subject cheque was lost by her in the month of October 2015 itself and issuing the cheque on 12.02.2016 to the complainant is impossible. Except stating that the complainant know the accused for more than 10 years and he advanced hand loan of Rs.10,80,000/- on 01.02.2016 and the cheque was issued on 06.02.2016, 5 days thereafter, there is no other facts adverting to the reply given by the accused to the statutory notice issued by the complainant. Non-Traceable Certificate and C.S.R receipt issued by the Gopichettipalayam Police leads to an undisputed fact that cheque bearing No.000047 drawn at HDFC Bank, Gopichettipalayam gon