BALACHANDER Vs. VISWANATHAN

JUDGEMENT

(1.) This petition has been filed for seeking to quash the proceedings in S.T.C.No.1607 of 2019 on the file of the learned Judicial Magistrate, Harur.

(2.) The learned counsel appearing for the respondent would submit that the petitioner is in custody for the offence punishable under Sec. 138 of Negotiable Instrument Act. According to the respondent, he extended the loan to the petitioner who is the close relative working in BASN Office, for his domestic expenses and in order to repay the said amount, the petitioner issued a cheque for Rs.7,60,000.00. The said cheque was presented for collection and the same was returned, for the reason 'Funds Insufficient' vide return memo dtd. 28/8/2019. Hence, the respondent has issued a statutory notice dtd. 4/9/2019 and the same was returned on 10/9/2019 with an endorsement 'unclaimed'. Thereafter, the respondent filed a petition dtd. 11/11/2019 before the learned Judicial Magistrate, Harur to condone the delay of 16 days. The learned Magistrate, without disposing the petition filed for condonation of delay, straightaway recorded the sworn statement of the respondent on 26/11/2012 and had taken cognizance in S.T.C. No.1607 of 2019 on 14/12/2019 and ordered the summons to the petitioner herein. Therefore, the complaint itself is not maintainable and it is liable to be quashed. Further, The learned counsel for the respondent would submit that, while filing the complaint for the offence punishable under Sec. 138 of Negotiable Instrument Act, there was a delay of 16 days and as such, the respondent filed the petition under Sec. 142 of Negotiable Instrument Act to condone the delay of 16 days in filing the complaint under Sec. 138 of Negotiable Instrument Act. The learned Magistrate, inadvertently without passing any order in the condone delay petition, recorded the sworn statement of the respondent herein on 26/11/2019 and taken cognizance in S.T.C.No.1607 of 2019. He would further submit that his defect is curable in nature and as such, requested this Court to remand back the matter for consideration of the condone delay petition.

(3.) Head Mr.J.Pradeep learned counsel appearing for the respondent.