S.C. MATHAVAN Vs. V. RAMATHILAGAM

JUDGEMENT

(1.) THE petitioner is the Accused in C.C. No. 475 of 2010 on the file of the Judicial Magistrate, Mettupalayam. The respondent is the de facto complainant and he has filed the complaint under Sections 138 and 142 of the Negotiable Instruments Act. The allegations in the complaint are: On 5.1.2008, the petitioner/accused borrowed a loan of Rs. 2,00,000/ - from the respondent/complainant and in consideration of the same, on the same day, the petitioner executed a promissory note in favour of the respondent/complainant agreeing to repay the same with interest at the rate of 24% per annum. Thereafter, the petitioner/accused did not make any payment towards the above loan either towards the principal or interest.

(2.) SUBSEQUENTLY , on 2.7.2010, the petitioner/accused issued an anti -dated cheque dating as 17.7.2010 for a sum of Rs. 3,20,000/ - drawn on ICICI Bank, Tirupur Branch in favour of the respondent/complainant towards the principal and accrued interest upto 5.7.2010 of the above loan. Thereafter, the petitioner/accused issued a legal notice dated 7.7.2010 to the respondent/complainant and her husband. In the meanwhile, the complainant presented the cheque on 17.7.2010 for collection through her account at Corporation Bank, Mettupalayam Branch and it was returned on 23.7.2010 with an endorsement as "Account Closed". The respondent and her husband sent a suitable reply dated 28.7.2010 through her Counsel under copy to the accused calling upon him to treat the said reply as statutory notice under Section 138 of the Negotiable Instruments Act. It was acknowledged by the accused on 30.7.2010 and his Counsel on 29.7.2010. Subsequently, the petitioner sent a rejoinder dated 6.8.2010 through his Counsel and he has not come forward to pay and settle the value of the cheque. Again the complainant sent a another reply dated 7.9.2010 through her Counsel for the said rejoinder. But the demanded amount was not paid. So the respondent filed the complaint on which the learned Magistrate has taken cognizance in C.C. No. 475 of 2010. Now, the petitioner/accused has filed this petition to quash the said proceedings.

(3.) THE vehement contention of the learned Counsel for the petitioner is that no statutory notice has been issued by the complainant as per Section 138 of the Negotiable Instruments Act. The petitioner/Accused has sent a notice dated 7.7.2010 to the respondent and her husband even prior to 17.7.2010. Though the complainant has issued reply on 28.7.2010, it was not in favour of the petitioner/accused and it is only a reply to the notice dated 7.7.2010 in favour of his Counsel. Therefore, it is not a statutory notice. The next contention raised by the learned Counsel for the petitioner is that if it is taken as if the statutory notice has been taken on 7.9.2010, filing of the complaint on the next day is premature one. Hence, he prayed that the complaint has to be quashed.