B JANAKI Vs. Y NALLATHAMBI

JUDGEMENT

(1.) THE petition has been filed by the petitioner/second accused to call for the records in C. C. No. 587 of 2006 on the file of the learned Judicial Magistrate no. II, Coimbatore and quash the same.

(2.) THE respondent/complainant's case is that he has filed the C. C. No. 587 of 2006 on an alleged offence under Section 138 of Negotiable Instruments Act before the learned Judicial Magistrate No. II, Coimbatore. The complainant contended that the petitioner and the second accused had approached the complainant and took a loan of a sum of Rs. 5 lakhs on 17. 05. 2001, for building development. The mode of loan amount was a pay order No. CNR/117617. Both the accused had jointly executed a promissory note and agreed to pay the said amount with interest at the rate of 24% per annum. The first accused issued a cheque dated 24. 03. 2004 for a sum of Rs. 8,40,000/- in favour of the complainant, drawn on M/s. Tamil Nadu Mercantile Bank, Pothanur Branch, Coimbatore, as full and final settlement. The said cheque was presented by the complainant through his banker namely, M/s. South Indian Bank Ltd, Kancheepuram Branch, Coimbatore on 25. 03. 2004 and the same was dishonoured with an endorsement of 'insufficient funds'. Subsequently, the complainant issued legal notice to the accused persons. The first accused received the notice and sent a false reply and second accused refused to receive the notice. Hence, the complainant filed the complaint in C. C. No. 587 of 2006 before the learned Judicial Magistrate No. II, coimbatore. Along with the said complaint, the complainant mentioned three witnesses and filed seven documents. The learned Magistrate has taken the case on his file.

(3.) THE petitioner/second accused contended that the respondent advanced Rs. 5 lakhs to the petitioner and first accused on 17. 05. 2001. For the said loan, promissory note was executed and cheque was issued in favour of the complainant for Rs. 8,40,000/- as full and final settlement. Further, the petitioner submits that the petitioner and the first accused failed to pay the amount due under the promissory note dated 17. 05. 2001 alleged to have been executed by both the accused in favour of the respondent. Further, the petitioner has stated that the proper course is to file a suit against them for recovery of the said amount under the promissory note. Further, the petitioner submitted that she is in no way connected with the issuance of the cheque. The petitioner has not authorised or instructed the first accused to issue cheque. The said cheque was not drawn by the petitioner herein. As such Section 138 of Negotiable Instruments Act is not attracted so as to make her liable for the offence under the said provision.