P LINGAPPAN Vs. R PALANISAMY

JUDGEMENT

(1.) THE brief facts that are necessary for the disposal of the above criminal Original Petition are set out below:THE respondent herein filed a Complaint for the alleged offence under Section 138 r/w Sections 141 & 142 of the Negotiable Instruments Act against M/s. Rathanam & Rathanam Tannery, a partnership firm, its partner Mr. S.P. Venkatachalam and another partner, the petitioner herein. THE Complaint was taken on file as C.C. No.317 of 2006 and the same is pending the file of the Judicial Magistrate, Perundurai and the petitioner is arrayed as 3rd accused therein. THE petitioner has filed the above Quash Petition to quash further proceedings in C.C. No.317 of 2006.

(2.) THE case of the petitioner is that the cheque issued by the first accused-Firm was returned unpaid on 23.06.2006 with an endorsement Account Closed' and the intimation from the bank was received on 26.6.2006. THE respondent herein has issued a legal notice dated 7.7.2006 to the following address:"P. Loganathan,Partner: Rathanam & Rathanam, S/o Porappanna Gounder,11-Powar House Road,Erode - 1."THE said legal notice was returned with a postal endorsement "No such person" thereafter, the respondent has issued a rejoinder on 31.7.2006 to the petitioner and the same was returned on 2.8.2006 with an endorsement "intimation" neither any reply was given by the accused nor the amount covered by the cheque was paid and hence a Complaint has been filed.

(3.) MR. A. K. Kumaraswamy, learned counsel appearing for the petitioner submitted that admittedly a notice dated 7.7.2006 was sent to one P. Loganathan described as partner of M/s. Rathanam & Rathnam and the same had been returned. Thereafter, after the period of limitation was over, the respondent had sent a rejoinder on 31.7.2006 to the petitioner and the said rejoinder had been returned with an endorsement "intimation". According to the learned counsel unless and until the notice of demand is actually served on the petitioner and after receipt of such notice if the petitioner had defaulted in complying with the demand within the stipulated time of 15 days then only the cause of action for filing a case against the petitioner would arise and the rejoinder sent by the respondent will not cure the defect in the notice dated 07.07.2006.