K. GANGA Vs. K. VALLINAYAGAM

JUDGEMENT

(1.) THE petitioner herein has challenged the proceedings in S.T.C. No. 156 on the file of the learned Judicial magistrate No. 4, Tirunelveli under Section 138 of the Negotiable Instrument Act.

(2.) THE learned counsel for the petitioner would submit that the petitioner has obtained the cheque dated 01.12.2013 for a sum of Rs. 23,04,504/ -, which was represented on 03.12.2013 and it was returned as insufficient funds. But, without intimating the same, the respondent once again represented the cheque for encashment on 07.02.2014, which was also returned as insufficient funds and then only, he issued notice under Section 138(b) of the Negotiable Instrument Act and hence, the second presentation before the bank is barred. For the said reason, he relied on the decision in Sil Import, USA v. Exim Aides Silk Exporters, Bangalored reported in : (1999) 4 SCC 567 and another decision in M/s. Devi Packaging Industries, Chennai and Etc. v. M/s. Bazargaon Paper & Pulp Mills Pvt. Ltd., Nagpur reported in : 2010(1) TNLR 36 (Bom). He would further submit that the fact of presentation of the cheque at the first time on 03.12.2013 has not been mentioned in the statutory notice as well as the complaint and it would amount to suppression of material fact. He would further submit the cheque has been issued for obtaining housing loan and that has been utilised by the complainant and hence, it is hit by Section 58 of the Negotiable Instrument Act and hence, he prayed for quashing the proceedings.

(3.) HE would further submit that the question as to whether the cheque has been issued for legally purpose is only a question of fact and that can be decided at the time of trial and hence he prayed for dismissal of the application.