Dismissed

C.Owen Joseph Gilbanks, v. Shanmugam

Madras HC14 Dec 2021CRL OP/22326/2017

Case brief

AI extract

What is this about?

In this criminal appeal under Section 482 CrPC against Section 138 of the Negotiable Instruments Act proceedings, the Madras High Court rejected the petitioner's claim that the proceedings were not maintainable absent a legally enforceable debt. The court vested the burden of proving lack of consideration on the petitioner and dismissed the petition, allowing the trial to proceed.

What did the court decide?

Petitioner's personal appearance dispensed with (for specific stages); Criminal Original Petition dismissed; connected criminal miscellaneous petitions closed.

C.Owen Joseph Gilbanks, Vs Shanmugam — Cheque Dishonour | Madras HC (2021)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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Dated 14.12.2021

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CORAM:

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THE HONOURABLE MR.JUSTICE N. SATHISH KUMAR

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Crl. O.P. No.22326 of 2017 and Crl.M.P.No.13087 and 13088 of 2017

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C.Owen Joseph Gilbanks

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. . . Petitioner/Accused

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Versus

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Shanmugam

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. . . Respondent/ Complainant

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PRAYER : Criminal Original Petition filed under Section 482 Cr.P.C., to call for the records pertaining to S.T.C. No.550 of 2014 by Judicial Magistrate Court, Udhagamandalam and quash the same.

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For Petitioner : Mr.T.Shanmugam

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For Respondent : Mr.J.Bharathiraja

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ORDER

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This is an application filed under Section 482 Cr.P.C. to quash the proceedings initiated against the petitioner in S.T.C. No.550 of 2014 on the file of the learned Judicial Magistrate, Udhagamandalam and quash the same.

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It is the contention of the learned counsel appearing for the petitioner that the entire proceedings initiated under Section 138 of the Negotiable Instruments Act, 1881, is not maintainable, as there is no legally enforceable debt between the petitioner and the respondent. It is the further contention of the learned counsel for the petitioner that the cheque in question was issued to one Jawahar and in fact he has given a receipt accepting the payment and receiving of the cheque. Therefore, the present complaint is not maintainable.

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At the outset, I am not able to persuade myself for such submissions, as it is a matter of evidence. Dislodging the legal presumption attached to the cheque, the initial onus lies on the drawer of the cheque. It is for the petitioner to prove the alleged receipt issued by the so-called Jawahar, before the trial court. Therefore, this court cannot make any rowing enquiry against the factual aspects, as it is a matter https://hcservices.ecourts.gov.in/hcservices/ of evidence before the trial court.

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At this juncture, the learned counsel appearing for the petitioner seeks the indulgence of this Court to grant an order dispensing with the personal appearance of the petitioner. Accordingly, the personal appearance of the petitioner/Accused before the trial Court is dispensed with, except for receipt of copies, answering the charges, questioning under Section 313 Cr.P.C., passing of judgment, or on any other date as may be required by the trial Court.

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Accordingly, the criminal original petition is dismissed. Consequently, the connected criminal miscellaneous petitions are closed.

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Sd/Assistant Registrar(CS III)

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//True Copy//

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Sub Assistant Registrar

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psa/asr To

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The Judicial Magistrate, Udhagamandalam.

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+1 cc to Mr.T.Shanmugam, Advocate Sr.NO. 66705 +1 cc to Mr.J.Bharathiraja ., Advocate Sr.NO. 16690

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Crl. O.P. No.22326 of 2017

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RSI(CO) A.SK(30.12.2021)

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

C.Owen Joseph Gilbanks, v. Shanmugam

Case brief

What is this about?

What did the court decide?

C.Owen Joseph Gilbanks, v. Shanmugam

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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