S P DAMODARAN Vs. RAMASWAMY NAIDU

JUDGEMENT

(1.) THE accused in C. C. No. 631 of 1992, on the file of the judicial Magistrate No. III, Coimbatore, has filed this petition to quash the said complaint under section 482 of the criminal Procedure Code. THE relevant allegations in the complaint are briefly as follows : THE accused borrowed Rs. 26, 850 on April 24, 1987 , and Rs. 9, 650 on July 16, 1987. Subsequently, on January 30, 1988 , the accused requested the complainant to advance some more money and took out two demand drafts for Rs. 16, 000 each. On July 16, 1987 , the accused executed a bond to the complainant for Rs. 36, 500 borrowed. On October 1, 1989 , the accused executed a pronote for Rs. 36, 500. On March 1, 1990 , he borrowed Rs. 20, 000 from the complainant. Thus, a sum of Rs. 88, 500 was due and payable by the accused to the complainant, by way of principal amount, apart from interest and bank charges. He paid interest periodically. Thus a total sum of Rs. 56, 500 was due to the complainant from the accused as on March 16, 1990 , together with interest for about five months. THE amount together with other hand loans was rounded off to Rs. 1 lakh and the accused executed a pronote for the said sum on March 16, 1990 , in favour of the complainant, agreeing to pay interest at 18 per cent. per annum. Despite the demand he did not pay the amount. Finally, the accused issued a cheque dated May 28, 1992, drawn on Canara Bank, Coimbatore, for Rs. 1 lakh in discharge of the liability in favour of the complainant. THE complainant presented the cheque to his bank viz. , Indian Bank, Coimbatore. It was dishonoured by Canara Bank stating "funds insufficient". It was informed by the complainant's banker by debit advice dated June 16, 1992. On July 1, 1992, the complainant issued legal notice to the accused to settle the account within fifteen days from receipt of the notice, as provided under section 138 of the Negotiable Instruments Act. THE accused was informed by the postal authorities on July 13, 1992, about the registered cover and the accused did not receive the notice with ulterior motive and the registered notice is returned on July 25, 1992, as "not claimed". THE accused had knowledge of the registered cover and despite that the accused had not settled the amount within fifteen days from the date of knowledge of the registered cover. Thus the accused had committed an offence under section 138 of the Negotiable Instruments Act.

(2.) MR. Loganathan, learned counsel appearing for the petitioner, would submit that the requirement of section 138 of the Negotiable instruments Act was not complied with in this case and hence the complaint is vitiated. He would further submit that on the foot of pronote for Rs. 1 lakh, the complainant had filed a civil suit and so this criminal complaint will not lie.