THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 09.06.2022

CORAM:

THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN

CRL.O.P.No.4519 of 2020

and

Crl.MP.Nos.2592 & 2593 of 2020

Thanigaivel Adiyapatham

... Petitioner

Vs.

Andhra Bank,

Mount Road Branch,

No.95, New No.137, Anna Salai,

Represented by its Senior Manager,

G.S.Rajagopalan.

... Respondent

PRAYER:Criminal Original petition is filed under Section 482 of

Criminal Procedure Code, to call for the records in C.C.No.1092

of 2019 on the file of the learned Metropolitan Magistrate, FTC-

I, Allikulam, Chennai and quash the same.

For Petitioner

: Mr.K.Jagannathan

For Respondent

: No appearance

ORDER

This Criminal Original Petition has been filed to quash the

proceedings in C.C.No.1092 of 2019 on the file of the learned

Metropolitan Magistrate, FTC-I, Allikulam, Chennai initiated for

an offence punishable under Section 138 of the Negotiable

Instruments Act, 1881. The petitioner is the sole accused and

the complaint lodged by the respondent.

2.

The course of the complaint is that the

respondent/complainant sanctioned housing loan facilities of

Rs.13,70,000/- to the accused through sanction letter

No.1606/53/HLP/141 dated 17.01.2013. On receipt of the entire

loan amount the petitioner executed loan and security documents

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

in favour of the respondent and provide loan facility in order

to repay entire loan amount by way of EMI. The petitioner issued

cheque for a sum of Rs.16,750/- dated 19.07.2018. The respondent

presently cheque for commercial and the same was returned for a

reason ''Funds Insufficient''. Thereafter, the respondent caused

statutory notice under Section 138 of the Negotiable Instruments

Act, 1881 and lodged complaint.

3.

Learned counsel for the petitioner would submit that

the petitioner is working in a Private Company and while being

so the respondent bank along with another bank advertised that

they are providing lower housing loan ranging from 12 lakhs to

20 lakhs promoted by M/s.New Chennai Township Pvt. Ltd., Further

the respondent also offered lower interest and on the home loan

compared to the other banks. Therefore, the petitioner

approached the respondent bank for availing housing loan, he

paid advance amount to the developer and the complainant, and

further, the respondent gave a loan application to the developer

and applied for a loan to a sum of Rs.13,70,000/- on 17.01.2013.

On the same day, it was sanctioned and directed disbursal to the

developer. The petitioner was assured that the project will be

completed within a stipulated time. Thereafter the petitioner

was informed that step by step of construction, a part of the

amount will disbursed to the developer. As requested by the

respondent bank, the petitioner issued 12 cheques in advance for

repayment of monthly EMI.

4.

However the respondent bank had released the entire

amount at Rs.12,37,834/- on 22.01.2013 in favour of the

developer, that too even before registration of any Sale Deed in

favour of the petitioner. Even after period of seven years, the

project has not even started and now the respondent filed the

present complaint as if the petitioner issued for the 1^st monthly

EMI. That apart, the statutory notice as contemplated under

Section 138 of the Negotiable Instruments Act was not issued to

the petitioner.

5. On perusal of complaint revealed that the respondent

issued statutory notice dated 14.08.2019, thereby call upon the

petitioner to pay the cheque amount. However, the said notice

notice was returned with an endorsement 'Delivery attempted,

door locked'. Whereas, the enclosures along with the complaint

shows that the petitioner, as if received the legal notice and

and produce the acknowledgment dated 18.09.2018. Therefore,

there is no prove to show that the statutory notice is duly

served on the petitioner as contempla