Crl.O.P.(MD)No.8557 of 2019

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 04/04/2022

CORAM:

THE HON'BLE MR JUSTICE G.ILANGOVAN

Crl.O.P.(MD)No.8557 of 2019

and

Crl.MP(MD)Nos.5368 and 5369 of 2019

S.Magheshwari : Petitioner/Sole Accused

Vs.

Annamalai : Respondent/Complainant

Prayer: Criminal Original Petition is filed under Section 482

Cr.P.C., to call for the records in CC No.86 of 2017 on the file of

the Judicial Magistrate No.1, Dindigul and quash the same.

For Petitioner

: Mr.I.Saliyakhan

For Respondent : Mr.V.Karuna

O R D E R

This criminal original petition is filed seeking quashment of

the case in CC No.86 of 2017 on the file of the Judicial Magistrate

No.1, Dindigul.

2.The case of the prosecution in brief:-

It is a case of private complaint. The respondent herein filed

a private complaint setting out the following facts. The petitioner

herein obtained a loan amount of Rs.7,50,000/- promising to repay

the same within two months. On 09/04/2017, towards discharge of the

above said loan amount, she handed a cheque, dated 09/06/2017 drawn

the cheque in favour of the complainant and the cheque was presented

for payment, on 09/06/2017 before the R.M Colony Branch IOB, but

that was returned as 'payment stopped by the drawer'. After

completing the statutory formalities, he filed the private complaint

before the trial court stating that this petitioner has committed

the offence under section 138 of the Negotiable Instruments Act.

3.Seeking quashment of the same, this petition has been filed

mainly on the ground that the respondent has not stated the correct

date of the transaction in the complaint. Another ground is that the

respondent has omitted to mention in which transaction, the cause of

action has arisen. The place of payment of loan is not mentioned and

the respondent is also not known to the petitioner.

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

Crl.O.P.(MD)No.8557 of 2019

4.It is the further ground that the total value of the cheque

issued is only having below Rs.5,00,000/-. But the case has been

filed for a sum of Rs.7,50,000/-, which is not permissible under

law.

5.Heard both sides.

6.It is a transaction out of the loan and subsequently, the

alleged issuance of the cheque for the above said loan amount,

towards the discharge of the above said loan amount and presentation

for payment, dishonoured.

7.The learned counsel appearing for the petitioner would submit

that value of the cheque is clearly mentioned in the cheque itself

as below Rs.5,00,000/-, but the respondent has filled up the cheque

for Rs.7,50,000/- and presented the same for payment. So according

to him, the cheque is an un-authorised one and notice was not

properly served upon the petitioner.

8.The learned counsel appearing for the petitioner would rely

upon the judgment of this court reported in the case of Kishore Vs.

Arul Jothi [2017(3) MWN (Cr.) DCC 29 (Mad.)], wherein a similar

situation has arisen. The plea was raised in that case is that

since notice of demand only will give cause of action for the

prosecution. If no notice has been received by the accused, the

prosecution itself is not valid under law. It is the specific case

of the complainant in the private complaint that he issued notice on

22/06/2017, but it was returned un-served, on 30/06/2017. So

according to him, notice was sent to the known address of the

petitioner, which is deemed service.

9.The learned counsel appearing for the petitioner would submit

that as per the judgment of this court reported in Kishore Vs. Arul

Jothi {2017(3)MWN (Cr.) DCC 29 (Mad.), notice is sent to the wrong

address that cannot be termed to be a proper service. So also relied

upon the judgment in the case of Sivasakthi Agencies Vs. Ajit

Construction [2016(3) MWN (Cr.) DCC 127 (Mad.)

10.Per contra, the learned counsel appeari