Dismissed

K.Jayamani, F/45 Years v. D.Kannan

Madras HC23 Nov 2021CRL OP/19825/2017

Case brief

AI extract

What is this about?

The court dismissed the criminal original petition seeking quashing of a Section 138 complaint. It held that factual issues regarding cheque issuance and debt validity require a full trial. Consequently, the petition was dismissed, but the accused was directed to apply for discharge under Section 436 Cr.P.C., with instructions to the trial court to grant bail upon filing.

What did the court decide?

Petition dismissed. Accused directed to apply for discharge under Section 436 Cr.P.C. to be released on bail.

K.Jayamani, F/45 Years Vs D.Kannan — Cheque Dishonour | Madras HC (2021)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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Dated: 23.11.2021

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C O R A M

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THE HONOURABLE MR.JUSTICE N. SATHISH KUMAR

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Crl. O.P. No. 19825 of 2017 and Crl.M.P.No. 11953 & 11954 of 2017

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K.Jayamani . . . Petitioner/Accused

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Versus

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D.Kannan . . . Respondent/Complainant

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PRAYER : Criminal Original Petition filed under Section 482 of Cr.P.C. to call records and quash the complaint in C.C.No.691 of 2017 on the file of the learned Judicial Magistrate VII, Coimbatore.

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For Petitioner : Mr.M.N.Balakrishnan

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For respondent : Mr.T.Ganesan

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O R D E R

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This Criminal Original Petition has been filed to quash the complaint in C.C.No.691 of 2017, pending on the file of the learned Judicial Magistrate VII, Coimbatore.

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Heard the learned counsel appearing for the petitioner as well as the learned counsel appearing for the respondent and perused the materials available on record.

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Having gone through the materials available on record, this Court is of the considered view that when a complaint is filed under Section 138 of the Negotiable Instruments Act, this Court cannot go into the question of fact as to the validity of the issuance of cheque and whether the cheque has been issued towards a legally enforceable debt or not. Those issues are factual and triable issues, which have to be decided only by way of a full fledged trial and not otherwise under Section 482 of Code of Criminal Procedure. The above view of this Court is fortified by the decision of the Hon'ble Supreme Court in STATE OF HARYANA AND OTHERS Vs. BHAJANLAL AND OTHERS 1992 Supp (1) Supreme Court Cases 335, wherein the Hon'ble Supreme Court has held that the power of quashing a criminal proceeding should be

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

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exercised very sparingly and with circumspection.

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In such a view of the matter, this Court is of the view that quashing of the case cannot be considered, at this point of time. Accordingly, this Criminal Original Petition is dismissed. The personal appearance for the petitioner is dispensed with, except for answering the parties, receiving copies, 313 questioning on some other date specifically fixed by the Trial Court. It is for the petitioner to take all his defence before the trial Court. The accused is directed to appear before the trial Court within two weeks from the date of receipt of a copy of this order and file an application under Section 436 of Code of Criminal Procedure. On such filing of the application, trial Court is directed to release the petitioner on bail on the same day on executing a bond for a sum of Rs.10,000/- (Rupees Ten thousand only) each with two sureties. If thereafter, he absconds, a fresh FIR can be registered under Section 229 A of the Indian Penal Code. Consequently, connected Criminal Miscellaneous Petitions are closed.

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Sd/Assistant Registrar(CS V)

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//True Copy//

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Sub Assistant Registrar

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shk

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The learned Judicial Magistrate VII, Coimbatore.

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