RAHMATHULLAH Vs. RAMALINGAM

JUDGEMENT

(1.) - Petitioner Rahmathullah is the sole accused in C. C. No. 2808 of 1989 pending on the file of Judicial Magistrate, Tambaram. He is being prosecuted for having allegedly committed an offence punishable under Section 138 of the Negotiable instruments Act, on a private complaint instituted by respondent Ramalingam. In this petition preferred under Section 482 Cr. P. C. to call for the records and quash the pending prosecution as not maintainable and an abuse of process of Court, three grounds were urged by Sri Krishnamoorthi, petitioner's Counsel : (1) Cheque concerned was drawn on Canara Bank, Park Town, Madras-3 and it was presented for encashment at Tamilnadu State Co-operative Bank Ltd. , pariamet, Madras. However, the complaint has been preferred by the Judicial magistrate, Tambaram under whose jurisdiction neither Park Town, Madras nor periamet, Madras lies. Therefore, cognizance of the complaint by Judicial Magistrate, tambaram, was one without jurisdiction. (2) Statutory notice contemplated under the Negotiable Instruments Act was forwarded with insufficient address, leading to its return without service. In view of insufficiency of address, respondent has deprived the petitioner of an opportunity to make payment within the period afforded under proviso (c) of section 138 of the Negotiable Instruments Act. (3) Statutory notice sent by the respondent was returned to him on 11. 11. 1989. Period of limitation must be reckoned from the said date and 15 days time must be afforded to the petitioner from 11. 11. 1989 and hence institution of the complaint on 25. 11. 1989 is barred by limitation.

(2.) ON these three grounds, I have heard Mr. N. Ranganathan, learned Counsel representing the respondent. He submitted that the transaction, which resulted in the liability of the petitioner, has taken place within the jurisdiction of Judicial Magistrate. Tambaram, for the place of business of the respondent is Pallaveram. Even otherwise, he contended that merely because of lack of territorial jurisdiction prosecution cannot be halted, unless failure of justice is apparent. On the second ground, he submitted that statutory notice was sent to the address provided by the petitioner himself, which he has chosen to imprint in the petition preferred before this Court to have the impugned prosecution quashed. Hence, it cannot be contended that statutory notice was issued with insufficient address and thereby the petitioner was prevented from making payment of the proceeds of the cheque. In any event, he submitted that this was a question of fact, which may have to be appreciated by the trial Magistrate, after sufficient evidence is brought on record. On the last ground, he contended that 11. 11. 1989 was only the date of return to the respondent and that cannot form the basis for reckoning limitation.

(3.) I have carefully consider the divergent contentions advanced, with some amount of concern. Both Counsel have relied upon certain decided cases, which I will refer to at the appropriate time.