SOSAMMA Vs. RAJENDRAN

JUDGEMENT

(1.) This petition under S.482 Cr.P.C. is to quash Annexure A-1 complaint. Petitioner is the accused in C.C.368 of 1992 on the file of the Judicial First Class Magistrate's Court, Nedungandom. Annexure A-1 complaint was filed by the first respondent under S.138 of the Negotiable Instruments Act (for short' the Act') and S.420 of the I.P.C. The allegation was that the petitioner borrowed Rs.30,000/- on 8-5-1992 from the first respondent promising to re-pay the same on 13-5-1992 and issued a cheque, with date 13-5-1992. The cheque when presented was returned un-paid with the endorsement "funds insufficient". First respondent further alleged that only then he could know that he was cheated and deceived with the intention of not paying the amount. It is further alleged that, a notice demanding the amount was issued within time; but was returned without acceptance by the petitioner with the endorsement "unclaimed".. Petitioner alleges that the cheque itself is a forged one and that no offence under S.420 IPC or S.138 of the Act is committed; therefore, the complaint is liable to be quashed.

(2.) It was contended by the learned counsel for the petitioner that, the petitioner's husband had sold a bus to the first respondent and in that transaction, there was some difference of opinion between them that the first respondent managed to get a cheque leaf from the petitioner's house and he forged the signature of the petitioner. In support of the said argument, the learned counsel for the petitioner relied on Annexure A-3 agreement purported to have entered into by the first respondent. According to the learned counsel, a breach of agreement or a dishonour of a postdated cheque cannot constitute an offence under S.420 IPC. The remedy, if at all, according to the learned counsel is to file a suit for recovery of the amount. Then, it was also contended that, since no notice was served or received by the petitioner, the offence under S.138 of the Act also is not made out. That being the position according to him the complaint and the proceedings have to be quashed.

(3.) On the other hand, learned counsel for the first respondent contended that, the question as to the genuineness of the cheque is a matter to be decided at the trial and that the notice since was returned "unclaimed" on account of the default of the petitioner, would constitute service and the same in the circumstance has to be treated as receipt of notice by the petitioner.