G S SUBRAMANIAM Vs. ENGU SHA

JUDGEMENT

(1.) - The first accused in C. C. 4448/90 on the file of XVII Metropolitan magistrate, Saidapet, has filed this petition under Section 482, Cr. 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 and Janakirama arraying them as accused 1 and 2 for offences punishable under Sections 408, 409 and 420 read with 34 I. P. C. and Section 138 Negotiable instruments Act. The allegations in it are briefly as follows : the complaint's son was unemployed for quite long time. The complainant wanted to settle him in life. The first accused is the father-in-law of the second accused. They approached the complainant in December, 1987 and represented to him that they own a brand new printing press machine and all other accessories and they intend to sell it for Rs. 42,000/- and assures that there is no charge or lien or loan against the said printing press. Believing their representation to be true, the complainant inspected the printing press and agreed to purchase the same at Rs. 42,000/ -. The first accused fixed the price of Rs. 42,000/- and prepared the sale repeat (receipt ?) for the said sum and asked the second accused to sign the stamped receipt on 7. 11. 1988. They represented that they have misapplied the original purchase bills. On the instance of the complainant they took him to an advocate and a declaration was signed by the second accused on 7. 1. 1988. On the demand made by the complainant, they caused the preparation of bond and the second accused had signed in it and on 10. 1. 1993, both the accused gave the aforesaid document to the complainant. The printing press and accessories were brought to the complainant's place and he took lawful possession and ownership over the same. On 2. 3. 88, the Crime Branch Police Authorities came to his place and informed him that the entire printing press and all its accessories belonged to M/s Enfield business Finance and Leasing Ltd. and required him to hand over the entire printing press and accessories purchased and brought at a cost of Rs. 45. 000/ -. They took the printing press and accessories in two lorries. The complainant searched for the accused, who made themselves scare. Ultimately, the complainant traced them and informed them as to what had happened and they consoled him and issued a cheque on 15. 2. 88. When presented for encashment, it was dishonoured with endorsement "refer to drawer". Then the complainant gave report to the police and they enquired the accused in his presence. They admitted their guilt and paid Rs. 15,000/- and promised that they will pay Rs. 9,000/- every month for a period of three months. On 8. 6. 88, they paid Rs. 9,000/ -. Later, they issued a cheque dt. 20. 4. 89 for Rs 18,000/- to the Sub- Inspector of Police, Crime Branch, Egmore, towards the dues. After long delay, they handed over the cheque on 10. 6. 89. When presented for encashment, it came dishonoured with endorsement "exceeds arrangement". Thus, once again they had cheated the complainant. Hence, the complaint.

(3.) MR. V Manoharan, the learned counsel appearing for the petitioner, would submit that the case taken on file by the learned Magistrate only for offence under Section 138 of Negotiable Instruments Act (which I shall hereafter refer to as 'the Act')and that the cheque was presented beyond six months from the date of the issue of the cheque and hence the requirements necessary to make out offence under Section 138 of the Act are not available in this case and so the taking cognizance of the case for offence under Section 138 of the Act by the learned Magistrate is not correct and liable to be quashed.