Petitioner sought quashment of proceedings under Section 138 NI Act regarding a cheque alleged to be issued falsely. Court noted that since the defence raised factual issues, such matters must be resolved during trial; hence, quash petition dismissed.
Criminal Original Petition dismissed; stay petition closed; personal appearance dispensed with.
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Crl.O.P.No.1534 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 24.04.2023
CORAM:
THE HONOURABLE MR. JUSTICE SUNDER MOHAN
Crl.O.P.No.1534 of 2021 and Crl.M.P.Nos.890 & 891of 2021
Kavitha
...Petitioner / Accused
-Vs-
Antony Maria Prasand ... Respondent / Complainant
Prayer: Criminal Original petition filed under Section 482 of Code of Criminal Procedure, to call for records relating to the proceedings in C.C.No.175 of 2020 on the file of the Judicial Magistrate, Fast Track Court No.II, Coimbatore, and quash the same.
For Petitioner : Mr.V.Illanchezhian
For Respondent : No appearance
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Crl.O.P.No.1534 of 2021
ORDER
This Criminal Original Petition has been filed seeking to quash the proceedings in C.C.No.175 of 2020 on the file of the Judicial Magistrate, Fast Track Court No – II, Coimbatore, filed for the offences under Section 138 of the Negotiable Instruments Act.
2.It is alleged in the complaint that the petitioner and her husband approached the complainant for a loan of Rs.2,00,000/- and in discharge of the said liability, they had issued a cheque for the said amount on 02.01.2020, which was drawn from HDFC Bank. When the said cheque
was presented for collection, it was returned with an endorsement 'Drawers Signature Differs'. Hence the complaint.
3.The learned counsel for the petitioner submitted that the impugned complaint is clearly an abuse of process of law. The cheque was not issued in discharge of any liability. The respondent has misused the blank cheque drawn by the petitioner. The cheque was actually issued to one New Sony, Tuticorin. The said fact has been mentioned in the Insolvency Petition filed by the petitioner's husband in I.P.No.7 of 2018
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on the file of the Principal District Judge, Tuticorin. The above facts would fairly show that the impugned complaint is a malafide and hence
liable to be quashed.
4.Though notice was served on the respondent, none has entered
appearance for the respondent.
5.This Court finds force in the submissions made by the learned counsel for the petitioner, that in the Insolvency Petition, the subject cheque was mentioned as given to one “New Sony, Tuticorin”. However, the said fact has to be established only during trial and this Court cannot adjudicate those issues in this quash petition. Since the points raised by the learned counsel for the petitioner are factual in nature, it is open to the petitioner to establish the above facts before the trial Court. It is needless to say, that the trial Court shall consider the points raised by the petitioner.
6.In the result, this Criminal Original Petition is dismissed.
Consequently, connected stay petition in Crl.M.P.No.890 of 2021 is
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closed. Since the petitioner is a lady, her personal appearance before the trial Court in C.C.No.175 of 2020 is dispensed with, unless the learned Magistrate considers her presence necessary for the progress of the trial. Hence, Crl.M.P.No.891 of 2021 is allowed
24.04.2023
smv
Index : Yes/No Speaking order: Yes/No Neutral citation : Yes/No
To,
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Crl.O.P.No.1534 of 2021
SUNDER MOHAN,J. smv
Crl.O.P.No.1534 of 2021 and Crl.M.P.Nos.890 & 891 of 2021
24.04.2023
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2 issues framed by the court
Whether to quash criminal proceedings on the ground that the cheque was misused and raised in a third-party insolvency petition.
Whether factual disputes regarding the issue of the cheque should be adjudicated in a quash petition rather than during trial.
2 provisions across 2 enactments
Kavitha
Antony Maria Prasand
SUNDER MOHAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
