ADRIL DCOUTH Vs. PREMIER AUTO ELECTRIC LTD

JUDGEMENT

(1.) The short ground to invoke the inherent power of this Court under S.482 Cr.P.C. to axe Annexure.1 complaint filed by the respondent against the petitioner accusing him of having committed the offence under S.138 of the Negotiable Instruments Act, 1881 (for short the N.I. Act) is issuing of originals of Annexure.2 and 3 respectively by the respondent when the cheque issued by the petitioner was returned by the drawee bank unpaid on the ground of insufficiency of fund in the account of the petitioner maintained with the drawee bank on two earlier occasions and non filing of complaint against the petitioner by the respondent alleging commission of offence under S.138 of the N.I. Act within one month of arising of cause of action.

(2.) Undisputed facts are that petitioner used to purchase electrical and mechanical items from the complainant company on credit and Rs. 71207/- was owned by the petitioner to the complainant company under the credit sales made. In partial discharge of the liability the petitioner issued the cheque in question (cheque dated 31.3.1997 for Rs. 30,000/- drawn on the Canara Bank, Palarivattom Branch) to the respondent and that cheque was dishonoured by the drawee bank when presented for encashment. By means of original of Annexure.2 complainant requested the petitioner to send to it a "demand draft for Rs. 30,985/- in lieu of the returned cheque immediately". Cheque dishonoured was again presented for encashment and when presented on the second occasion also the same was returned unpaid with the remark insufficient fund. After bouncing of the cheque again i.e., after presented it for encashment second time, the complainant threatened petitioner that legal action would be initiated against him if payment was not received by it by 25th of April 1997 (Annexure.3). Cheque in question was again presented by the complainant company for encashment and on the third occasion also that cheque was returned unpaid with the endorsement insufficient fund. The complainant when issued a lawyer notice demanding payment of the amount covered by dishonoured cheque and it is not the case of the petitioner that he had paid the amount covered by that cheque within fifteen days of receipt of that lawyer notice. The proceeding sought to be stalled has been instituted before the Chief Judicial Magistrate Court, Ernakulam and the learned Magistrate took cognizance of the offence and issued process (C.C. No. 2380/97). The Chief Judicial Magistrate Court, Ernakulam made over the case to the Addl. Chief Judicial Magistrate Court (EO), Ernakulam and the case is renumbered as C.C. No. 248/98.

(3.) Respondent's counsel contended that criminal proceedings initiated at the instance of the respondent (complainant company) are not liable to be stultified at the threshold and according to him Annexure.2 and 3 are not statutory notices envisaged under S.138 of the N.I. Act as contended by the petitioner and they are only intimations given by the respondent to the petitioner whereby he was informed of the fact of returning of the cheque in question by the drawee bank unpaid on the ground of insufficient fund.