N W RAVICHANDRAN Vs. VELLAIYAPPAN

JUDGEMENT

(1.) The accused in C.C.No.252 of 1990 on the file of Judicial Magistrate, No.II Srivilliputhur, has filed this petition under Sec.482, Crl.P.C., praying to call for the records in the aforesaid case and quash the same.

(2.) The respondent has filed the private complaint against the petitioner for offence under Sec.138, Negotiable Instruments Act read with Sec.420,I.P.C. The allegations in the complaint are briefly as follows: The accused borrowed Rs.40,000 from the complainant and executed a pronote along with his brother on 13-5-1990 in favour of the complainant. When he demanded back that amount with interest, the accused issued a cheque on 13-9-1990 for Rs.40,000. When presented for collection on 13-9-1990, it was returned with endorsement "refer to drawer", on 14-9-1990. The complainant issued registered notice on 26-9-1990 to the accused. It was returned with endorsement "no such addressee". The complainant issued another notice on 8-10-1990. The accused received it on 12-10-1990. The accused approached the complainant and requested grant of 15 days time to deposit the amount and requested the complainant not to take legal action. Believing the same, the complainant waited for 15 days. Then he presented the cheque on 30-10-1990. It was again returned with endorsement "refer to drawer" due to insufficiency of funds, on 31-10-1990. The complainant issued registered notice, calling upon the accused to pay the amount. The accused received it on 12-11-1990. He did not pay the amount. Hence, this complaint was filed on 29-11-1990.

(3.) Mr. A. Packiaraj, the learned counsel appearing for the petitioner, would contend that while the cheque was returned on the first presentation, the offence was complete and that while so, the petitioner cannot present the very same cheque again and make a complaint for offence under Sec.138 of the Negotiable Instruments Act. He would further contend that there are no ingredients for making out offence under Sec.420,I.P.C. He would further state that for offence under Sec.138 of the Negotiable Instruments Act, the procedure is that of a summons case and for offence under Sec.420,I.P.C., the procedure is that of the warrant case and both cannot be clubbed together.