K JAYANTHI Vs. V RAMASAMY

JUDGEMENT

(1.) THE accused in C. C. No. 722 of 1993 on the file of the XVII metropolitan Magistrate, Saidapet, Madras , has filed this petition under Sec. 482, Crl. P. C. praying to call for the records in the above case and quash the same.

(2.) SHORT facts are. The respondent has filed the private complaint against the petitioner for offence under Sec. 138, Negotiable instruments Act (which I shall hereafter refer to as ' ' the act' ' ). The allegations in it are briefly as follows: The accused and her husband arc dealers in Real Estate. The accused offered to sell the properly measuring 3 grounds near Seashore Town near beach in Saidapet Taluk. The accused received major portion of the sale consideration of Rs. 1,16,000 subsequently the accused and her husband could not fulfil the promise. In acknowledgement of the liability, the accused issued two cheques for a sum of rs30,000 each dated 27. 5. 1992 and 10. 6. 1992 in favour of Krishnan. Krishnan endorsed the cheque in favour of the complainant for valuable consideration. The complainant presented the cheque dated 27. 5. 1992 on 4. 7. 1992. It was dishonoured due to ' ' funds insufficient' ' by memo dated 6. 7. 1992. The accused requested the complainant to wait for some time and then present it after getting his information. Later, the accused requested the complainant to present both the cheques in the third week of november, 1992. The complainant presented both the cheques on 24. 11. 1992. Both cheques were returned with dishonour intimation since accused had cleverly sent intimation to the banker to stop payment of both the cheques, even though at the time of sending such intimation, the accused had no funds to meet but the amounts of the cheques. Thus the accused had committed offence punishable under sec. 138 of the Act. He sent lawyer' ' s notice to the accused on 13. 12. 1992. The accused managed to evade the service of notice on her and made the postal authorities to endorse as ' ' notfound in my delivery time. '' Immediately after receipt of the return cover, the complainant instructed his lawyer to send a copy of notice through '' certificate of posting'' on 10. 1. 1993. Hence the complaint.

(3.) IN Manohar and another v. Mahalingam, 1992 L. W. (Crl.)367, Justice Padmini Jesudurai has observed in para 11 as follows: '' IN the same way, a clever drawer, knowingfully well, that the cheque would be returned for want of funds, could always circumvent Sec. 138 of the Act, by issuing '' stop payment'' order to the bank and later contend, that Sec. 138 of the Act cannot apply, since the cheque was returned unpaid, not for want of funds but in pursuance of a '' stoppayment order'' issued by him. This penal provision couldnot be nullified in that way. [italics supplied] Then in para. 13, the learned Judge has observed as follows: ' ' It follows from the foregoing discussions that even though the answer or the objection memo on the unpaid cheque shows a reason other than insufficiency of funds or inadequate arrangement, it would still be open to the com-plainant to establish, as a fact, that the cheque Was really returned unpaid only for want of funds or for inadequate arrangement. This the complainant could do by summoning the necessary bank records and the bank witnesses. This ingredient has to be established de hors an answer by the bank to that effect in the returned cheque or even inspite of a different answer given by the bank in the returned cheque. This could be done only during trial, by oral and documentary evidence. It is for the court of facts, on the material placed before it, to render a finding, as to whether the cheque had been returned unpaid either for want of funds or for inadequate arrangement. ' ' On the allegations made in the complaint which I have extracted at the outset and on the facts and authorities in this regard. I am clear that the second submission made by Mr. Gnanadesikan, cannot be sustained and has to be rejected.