JEYAPRAKASH Vs. ARJUNAN

JUDGEMENT

(1.) This quash petition is filed to quash the private complaint in S.T.C.No.1870 of 2010 on the file of the Judicial Magistrate Court No.1, Kuzhithurai having been taken cognizance for the offence under Section 138 of Negotiable Instrument Act read with Section 142 of Negotiable Instrument Act as against the petitioner herein.

(2.) The respondent filed a complaint to punish the petitioner for the offence under Section 138 of Negotiable Instrument Act read with Section 142 of Negotiable Instrument Act, alleging that the petitioner and the respondent are friends. On 10.09.2009, the petitioner approached the respondent/complainant and requested to lend a sum of Rs. 2 lakhs for his family need. The petitioner also agreed to repay the same, within two months. The respondent lent a sum of Rs. 2 lakhs to the petitioner and towards repayment of the said loan, the petitioner issued a cheque bearing No.029422 dated 30.11.2009 drawn on Tamil Nadu Mercantile Bank, Palliyadi. On instructions, the said cheque was presented through the respondent bank and the same was returned for the reason "funds insufficient". Thereafter, he also issued statutory notice to the petitioner and even after receipt of the same, the petitioner did not repay the amount. Therefore, he filed the complaint along with condone delay petition in Crl.M.P.No.4041 of 2010 on the file of the Judicial Magistrate No.1, Kuzhithurai. The learned Judicial Magistrate condoned the delay and had taken cognizance punishable under Section 138 of the Negotiable Instrument Act against the petitioner and issued the summons. The entire proceedings is under challenge in this quash petition.

(3.) The learned counsel appearing for the petitioner would submit that the respondent issued statutory legal notice as mandated under Section 138 of the Negotiable Instrument Act by addressing a wrong person instead of the petitioner. Therefore, the mandatory requirements under Section 138 of the Negotiable Instrument Act is not complied with and as such, the complaint is not maintainable as against the petitioner herein. He would further submit that the complaint has been filed with the condone delay petition in Crl.M.P.No.4041 of 2010, wherein, the learned Judicial Magistrate without even ordering notice and without giving any opportunity of hearing to the petitioner, mechanically allowed the same and had taken cognizance against the petitioner herein. Therefore, he prayed for quashing the entire proceedings.