LAWS(MAD)-2019-3-277

INSULATION HOUSEBY MEENAKSHI DAVEY Vs. PRAMOD KUMAR DAGA

Decided On March 07, 2019
Insulation Houseby Meenakshi Davey Appellant
V/S
Pramod Kumar Daga Respondents

JUDGEMENT

(1.) This petition has been filed to quash the proceedings in C. C. No. 2493 of 2013 on the file of the learned Fast Track Metropolitan Magistrate-IV, George Town, Chennai.

(2.) Mr. A. Thirumaran, the learned counsel for the petitioners submits that the petitioners are accused in the complaint filed by the respondent for the offence punishable under Section 138 of Negotiable Instruments Act. The respondent filed complaint alleging that the first accused is the partnership firm represented by the second petitioner and the second and third petitioners are partners of the first petitioner. The fourth petitioner is mandate holder and had purchased copper materials on various invoices on various dates. The outstanding was Rs. 13,65,257/- in which a cheque was issued for sum of Rs. 4,73,575/- bearing No. 970858 dated 07.05.2013 drawn on South Indian Bank Limited. The said cheque was presented for collection and the same was returned dishonoured as "payment stopped". Thereafter a statutory notice was issued and without repaying the said amount, reply notice was sent with false particulars. Therefore, the respondent lodged a complaint and the same was taken cognizance for the offence under Section 138 of Negotiable Instruments Act in C. C. No. 2493 of 2013 by the learned Fast Track Metropolitan Magistrate-IV, George Town, Chennai.

(3.) The learned counsel for the petitioner would further submit that to take cognizance for the offence under Section 138 if Negotiable Instruments Act, cheque must have been issued in discharge of legally enforceable debt or liability. The petitioners never issued a cheque in discharge of any legally enforceable liability. In fact, the said cheque in question was issued to settle the invoice No. 3465 dated 18.07.2008 whereas the said cheque was presented for collection only on 07.05.2013. Therefore, liability is time barred and it cannot be legally enforced and therefore it is deemed that cheque in question has not been issued in discharge of legally enforceable debt. Further he submitted that the alleged cheque was issued as early as March 2010 and issued stop payment to the banker as early as on 01.06.2010. Further he submitted that the alleged cheque was presented only on 07.05.2013 that too after a period of three years from the date of issuance of cheque. Further he submits that the same respondent complainant filed another complaint in C. C. No. 3498 of 2011 with the alleged cheque for a sum of Rs. 13,65,257/- and it is pending. When it being so, there is absolutely no possibility that the petitioners would have issued the present alleged cheque in the year 2013.