K M ABDUL AZIZ Vs. VENKATACHALAM

JUDGEMENT

(1.) The petitioner is invoking the inherent jurisdiction of this Court to quash the proceedings in CC No.152 of 1998 on the file of the Judicial Magistrate No.5, Tirunelveli.

(2.) This petition has arisen in this way: The petitioner herein borrowed monies from the respondent-complainant for the petitioner's family expenses and for his business purpose. He had agreed to repay the amount in three instalments by issuing three post-dated cheques. The petitioner herein issued post-dated cheques on 7-8-1997, 22-8-1997 and 5-10-1997 respectively for a consideration of Rs.1,00,000/-, Rs. 1,00,000/- and Rs. 1,50,000/-. When the three cheques were presented in the Bank for collection, they were returned with endorsement 'funds insufficient'. The respondent-complainant issued statutory notice to the petitioner on 25-10-1997. After receipt of notice, the petitioner represented to the respondent-complainant that he would make payment during the first week of February, 1998. Therefore, the respondent-complainant kept quiet. Thereafter wards, the respondent-complainant again represented the cheques for collection through Bank, but again the cheques were returned with the same reason of insufficient funds, on 9-2-1998. Within fifteen days from the receipt of the information dated 9-2-1998, the respondent-complainant issued registered notice to the petitioner on 21-2-1998 demanding payment, but no payment was forthcoming. The petitioner evaded to receive notice and the notice was returned to the respondent-complainant on 10-3-1998. Since no payment was made, the respondent- complainant instituted proceedings under Section 138 of the Negotiable Instruments Act against the petitioner before the Judicial Magistrate No.V, Tirunelveli. The learned Judicial Magistrate took the complaint on file in CC No.152 of 1998 and the matter is pending before the learned Judicial Magistrate. The petitioner has come forward with the instant petition to quash the proceedings on the ground that the money was advanced for the business purpose for Nachiar Real Estate and in the absence of the company as a party, the complaint is vitiated. The next ground set forth by the petitioner is that the complaint is barred by limitation. According to him, the cause of action to institute criminal proceedings arose, as soon as the demand notice was issued and no payment was made and the second notice does not give rise to a cause of action.

(3.) Heard both the sides. Perused the complaint. The complaint recites that the petitioner herein borrowed monies for his family expenses and also for his real estate business. It appears, the petitioner is running real estate business under the name and style of 'Nachiar Real Estate', but there is nothing to indicate that Nachiar Real Estate is a company or the amount was borrowed by M/s. Nachiar Real Estate. Therefore, the first ground raised by the petitioner falls to ground.