IN THE HIGH COURT OF JUDICATURE AT MADRAS

Reserved on : 11.04.2022

Delivered on : 13.04.2022

CORAM:

THE HON'BLE MR.JUSTICE SATHI KUMAR SUKUMARA KURUP

Crl.O.P.No.7216 of 2019

and

Crl.M.P.No.3976 of 2019

P.Muthukumar

... Petitioner/Accused

Vs.

M.Micheal

... Respondent/Complainant

PRAYER: Criminal Original Petition has been filed under Section

482 of Cr.P.C, praying to call for the records in C.C.No.73 of

2019 pending on the file of the learned Judicial Magistrate

(Fast Track Court) at Ambattur and quash the same.

For Petitioner : Mr.B.Harikrishnan

For Respondent : No appearance

ORDER

When the case is taken up for hearing, the learned counsel

for the Petitioner/Accused before the learned Judicial

Magistrate, Fast Track Court, Ambattur submitted that the

Petitioner had filed this petition seeking to quash the criminal

complaint filed by the Respondent/Complainant. He further

submitted that notice was taken to the Respondent/Complainant.

The name of the Respondent/Complainant is also printed in the

cause-list, but no counsel had appeared on behalf of the

Respondent/Complainant.

2.The learned Counsel for the Petitioner invited the

attention of this Court to the Page No.1 of the typed set of

papers filed along with this Petition regarding the notice

issued by the Petitioner. He caused the notice on the

Respondent/Complainant, the Respondent/Complainant issued a

reply and based on the reply, it has been converted into the

https://hcservices.ecourts.gov.in/hcservices/

criminal complaint. Further, the learned counsel for the

Petitioner submitted that the contents of the reply notice is

not as per the provision of Section 138 of the Negotiable

Instruments Act, which insists upon a statutory notice. The

reply notice given by the Respondent/Complainant was not caused

on the Petitioner herein. It was caused on the counsel for the

Petitioner. Therefore, the Respondent/Complainant had not

demanded the Petitioner to settle the amount or warned of the

consequences, consequentially, the Respondent/Complainant filed

a complaint. Therefore, he further submitted that the complaint

preferred by the Respondent/Complainant itself is not

maintainable.

3. In support of his contention, he relied upon the ruling

of the Hon'ble Supreme Court in the case of C.C.Alavi Haji Vs.

Palapetty Muhammed & Anr., reported in (2007) 6 SSC 555 and

K.R.Indira v. Dr.G.Adinarayana reported in (2003) 8 SCC 300.

4. A perusal of the judgment in K.R.Indira v.

Dr.G.Adinarayana reported in (2003) 8 SCC 300 it is found that

the statutory notice should contain the words that “the cheque

was issued by the accused, cheque was dishonoured for want of

sufficient funds or the accused had issued stop payment”.

Therefore, the provisions of Section 138 of Negotiable

Instruments Act attracted. Within 15 days from the date of

receipt of the statutory notice, if the accused fails to honour

the amount in the cheque or to issue proper reply within 15

days, the complainant will be forced to file complaint after the

expiry of 15 days. If those specific averments are not found,

then, the notice is held defective which will affect the private

complaint under Section 138 of Negotiable Instruments Act. Part

of the cause of action is the issuance of notice within 15 days

from the date of dishonour of cheque and next 15 days waiting

for the response from the accused. Only after expiry of 15 days

from the date of issuance of notice and receipt of notice, the

complaint can be filed.

5. As per the reported judgment of the Hon'ble Supreme

Court in the case of C.C.Alavi Haji Vs. Palapetty Muhammed &

Anr., reported in (2007) 6 SSC 555,which states that if the

notice issued is defective, then the complaint under Section 138

of Negotiable Instruments Act is not maintainable. The

Complainant/Resp