BABU XAVIER Vs. LALCHAND MUNOTH

JUDGEMENT

(1.) INVOKING the inherent powers of this court under section 482, Criminal Procedure Code, the petitioner, against whom two complaints taken on file as C. C. No. 6516 of 1989 by the 14th Metropolitan Magistrate, Egmore, Madras, for an offence under section 138 of the Negotiable Instruments Act, as amended by the Amending Act 66 of 1988, seeks to have the proceedings in the two cases quashed. The averments in the complaint are as follows :

(2.) THE respondent is the proprietor of Munoth and Munoth, carrying on business of money-lending. A-1 is a partnership firm of which the petitioner arrayed as A-2 was the managing partner. THE other partner was shown as A-3. THE firm had borrowed various amounts from the respondent and, in May, 1986, when the accounts were settled, it was found that the firm owed the respondent and its associate concerns, a sum of Rs. 21, 00, 000. On May 2, 1986, an agreement was entered into between the parties in pursuance of which the first accused-firm issued in favour of the respondent 57 post-dated cheques bearing different dates from May 2, 1986, to January 1, 1991, for a total sum of Rs. 21, 00, 000. THE petitioner had signed the cheques on behalf of the partnership firm. THE cheques were presented on the dates shown on them and the cheques up to June 1, 1987, were honoured, whereby the respondent realised a sum of Rs. 4, 30, 000. Cheques presented subsequent to June 1, 1987, were returned by the bank unpaid with endorsements "refer to drawer". By notices dated April 22, 1989, and April 8, 1989, respectively, in respect of the cheques in each case, the respondent called upon the petitioner and his firm to pay the amounts covered by the cheques. Though the notices were received, the amounts were not paid ; nor was any reply sent. An offence under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "the Act"), as amended by the Banking, Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act, 1988, had been committed. Hence the two complaints. C. C. No. 6515 of 1989, relates to four cheques dated December 1, 1988, January 1, 1989, February 1, 1989, and March 1, 1989, each for Rs. 40, 000, while C. C. No. 6516 of 1989 relates to cheque dated April 1, 1989, for a like sum.THE proceedings in the two cases are sought to be quashed on a short point urged by Thiru Chockalingam, learned counsel for the petitioner, that even, according to the complaints, the cheques were all post-dated cheques and had been drawn on May 2, 1986, and issued to the respondent on the same day and had been presented at the bank on the date shown in each cheque and as such, proviso (a) to section 138 of the Act, requiring the cheque to be presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier, has not been complied with and as such, even on the averments made in the complaint, no offence under section 138 of the Act is made out. According to learned counsel, all the 57 cheques were drawn on May 2, 1986, and issued to the respondent on the same day and the cheques being post-dated to a period beyond six months from the date on which they were drawn, could not be and had not been presented within six months from the dates on which they were drawn and could never come within the purview of section 138 of the Act.

(3.) AT this stage, any legal issue raised for quashing the proceedings has to be decided only on the averments made in the complaint. The Supreme Court has cautioned the High Courts from resorting too liberally to section 482, Criminal Procedure Code, to quash criminal complaints even at the very threshold. However, these powers have to be resorted to if, as the Supreme Court has laid down in Municipal Corporation of Delhi v. R. K. Rohtagi, 1983 AIR(SC) 67, 1983 CAR 44, 1983 (89) CrLJ 159, 1983 CrLR(SC) 9, 1982 (2) Scale 1124, 1983 (1) SCC 1, 1983 SCC(Cr) 115, 1983 (1) SCR 884, 1983 UJ 148, 1983 (203) All(CriC) 50, 1983 (20) ACC 50, 1983 SCC(L&S) 833, when the allegations in the complaints taken as they are and without adding or subtracting do not make out an offence and, in such a contingency, this court ought to quash the proceedings, since allowing it to continue would amount to abuse of the process of the criminal court. The legal contention raised in this case, therefore, has to be decided on the basis of the averments made in the two complaints.According to the complaints, the five cheques, as also the other 52 cheques, were written up by the petitioner on May 2, 1986, in pursuance of an agreement entered into between the parties, settling the liability of the partnership and, in pursuance of that agreement, the cheques were post-dated to various dates commencing from May 2, 1986, to January 1, 1991. The complaints also show that all the cheques were handed over to the respondent on the same day, i.e., May 2, 1986. The five cheques which are the subject-matter of the criminal complaints are dated December 1, 1988, January 1, 1989, February 1, 1989, March 1, 1989, and April 1, 1989. Each cheque had been presented in the bank on the dates shown in it. Under these circumstances, the question is whether, as contended by learned counsel for the petitioner, the cheques could be said to have been drawn on May 2, 1986, when they were written up and signed in complete form and handed over to the payee or whether they could be said to be have been drawn on the various dates shown on the cheques, as contended by learned counsel for the respondent.