K MAHABOOB JAN Vs. DAYAKARAN

JUDGEMENT

(1.) THE accused in C. C. No. 8762 of 1993, on the file of the xivth Metropolitan Magistrate, Egmore, Madras , has filed this petition under section 482 of the Criminal Procedure Code, 1973, to call for the records in the above case and quash the same. THE short facts are : the respondent has filed the private complaint against the petitioner for an offence under section 138 of the Negotiable Instruments Act, 1881 (which I shall hereafter refer to as "the Act" ). THE allegations in it are briefly as follows : THE accused borrowed Rs. 40, 000 on May 11, 1992 , and executed a pronote and deposited his title deeds. He borrowed another sum of Rs. 20, 000 on June 25, 1993. THE accused did not pay any amount towards the above. Towards the above loan, the accused gave a cheque for Rs. 60, 000 on July 21, 1993. At the time of issuing the cheque, the accused told that the cheque will be duly honoured on presentation. THE complainant presented the cheque on July 21, 1993.

(2.) IT was returned unpaid due to insufficiency of funds in the account of the accused, with an endorsement "payment stopped by the drawer". On enquiry, the complainant found out that there were no funds in the account of the accused even at the time of issuing the cheque and at the time the cheque went for collection. The complainant sent a notice on August 2, 1993 , calling upon the accused to repay the entire amount covered by the cheque within 15 days from the receipt of the notice. Knowing the contents of the notice, the accused refused to receive the notice and the same was returned unserved with an endorse ment "refused, return to sender". Hence, the complaint.