P. KRISHNAMOORTHY Vs. RAMAN

JUDGEMENT

(1.) The petitioner is the accused the S.T.C. No. 117 of 2013 on the file of the learned Judicial Magistrate II, Poonamallee. The respondent/complainant filed a private complaint before the Judicial Magistrate No. II, Poonamallee under Section 200 Cr.P.C., 1973 against the petitioner herein for an offence punishable under section 138 of the Negotiable Instruments Act.

(2.) The case of the respondent/complainant is that the petitioner herein purchased Buttons, D. Ring, Lace, Zip and other garment accessories worth about Rs. 1,00,000/- (Rupees One Lakh only) from him on various dates and issued a cheque bearing No. 238802 dated 12.01.2013 drawn on Central Bank of India, Chennai- 8. When the cheque was presented for encashment by the respondent/complainant through his bankers viz., State Bank of India, Koyambedu Branch on 02.04.2013, the Cheque was returned on 04.04.2013 for the reason "insufficient funds". Therefore, the respondent/complainant issued a statutory notice through his counsel on 03.05.2013. The petitioner received the said notice and sent a reply dated 29.05.2013, which according to the respondent/complainant contained false allegations. He therefore, filed the private complaint before the learned Judicial Magistrate No. II, Poonamallee in S.T.C. No. 117 of 2013.

(3.) The contention of the petitioner is that he has filed an insolvency proceedings in I.P. No. 3 of 2013 before the Sub Court, Poonamalle and the same is pending. According to the petitioner since there is a prohibition to initiate any legal proceedings against the debtor/petitioner without the leave of the Court, where the insolvency proceedings are pending as per section 28 (2) of the Provincial Insolvency Act, 1920, the respondent/complainant cannot initiate proceedings under section 138 of the Negotiable Instruments Act. The learned Counsel appearing for the petitioner drew the attention of this Court to Section 28 of the Provisional Insolvency Act, 1920, which reads as under: