FATIMA FAUSIA Vs. RAJESH MALHOTRA

JUDGEMENT

(1.) THE revision is directed against the judgment of conviction recorded by the learned VII Metropolitan Magistrate, George Town, Chennai in the proceedings initiated under section 138 of the Negotiable Instruments Act as against the petitioner herein and confirmed by the learned Additional District and Sessions Judge (Fast Track Court III), Chennai.

(2.) THE respondent/complainant laid the complaint as against the petitioner herein with the following allegations:- THE respondent/complainant entered into a property development agreement on 13.3.1991 and paid an advance of Rs.12,50,000/= to the petitioner/accused. As the agreement between the parties did not materialize, the complainant filed a civil suit before this court in C.S.No.1186 of 1995 claiming recovery of Rs.87,14,000/= with future compensation of Rs.1,00,000/= per month. A settlement was reached between the complainant and the accused. THE compromise clinched by the parties was recorded by this court. THE accused agreed to pay a sum of rupees one crore to the complainant and created a first charge on certain receivables of the accused. THEreafter, in the month of January 1999, the husband of the accused borrowed a sum of Rs.50,000/= and in June 1999, the accused herself borrowed a sum of Rs.65,000/= towards her daughter's medical treatment. An undated cheque bearing No.438302 drawn on Andhra bank was signed by the accused and sent to the complainant through her late husband. THE complainant, having come to know that the accused has received funds, presented the cheque for Rs.1,15,00,000/=. It was also informed to the accused through letter correspondence on 17.7.2002 that the cheque for the aforesaid amount would be deposited for collection on 20.7.2002. Accordingly, the complainant presented the cheque signed by the accused but, it was returned dishonoured by the bankers of the accused on 23.7.2002 for the reason "insufficient fund and payment stopped by the drawer". Statutory notice dated 5.8.2002 was issued to the accused and the same was received by her on 7.8.2002. No payment towards the cheque was made by the accused within the period stipulated by law. Hence, the complaint under section 138 of the Negotiable Instruments Act.

(3.) LEARNED counsel appearing for the respondent would contend that a fresh agreement was entered into between the parties as on the date of disposal of the suit filed by the complainant. Further, charge was created on the receivables of the accused. Only when the charge created on the receivables of the accused becomes due, the limitation would start. Therefore, the cheque has been issued within time for the legally enforceable debt, he submits.