G. S. Subramaniam vs Engu Sha

Pratap Singh, J.—The first accused in C.C. 4448/90 on the file of XVII Metropolitan Magistrate, Saidapet, has filed this petition u/s 482

Cr.P.C., praying to call for the records in the above case and quash the same.

Short facts are: The respondent has filed the private complaint against the petitioner and Janakirama, arraying them as accused 1 and 2 for

offences punishable u/s 408, 409 and 420 read with 34 I.P.C. and Section 138 Negotiable Instruments Act. The allegations in it are briefly as

follows:

The complainant''s son was unemployed for quite long time. The complainant wanted to settle him in life. The first accused is the father-in-law of

the second accused. They approached the complainant in December, 1987 and represented to him that they own a brand new printing press

machine and all other accessories and they intend to sell it for Rs. 42,000/- and assures that there is no charge or lien or loan against the said

printing press. Believing their representation to be true, the complainant inspected the printing press and agreed to purchase the same at Rs.

42,000/- The first accused fixed the price at Rs. 42,000/- arid prepared the sale repeat for the said sum and asked the second accused to sign the

stamped receipt on 7.1.1988. The represented that they have misapplied the original purchase bills. On the instance of the complainant they took

him to an advocate and a declaration was signed by the second accused on 7.1.1988. On the demand made by the complainant, Al caused the

preparation of a bond and the second accused had signed in it and on 10.1.1983, both the accused gave the aforesaid document to the

complainant. The printing press and accessories were brought to the complainant''s place and he took lawful possession and ownership over the

same. On 2.3.88, the Crime Branch Police Authorities came to his place and informed him that the entire printing press and all its accessories

belonged to M/s. Enfield Business Finance and Leasing Ltd and required him to hand over the entire printing press and accessories purchased and

brought at a cost of Rs. 45,000/-. They took the printing press and accessories in two lorries. The complainant searched for the accused, who

made themselves scarce. Ultimately, the complainant traced them and informed them as to what had happened and they consoled him and issued a

cheque on 15.3.88. When presented for encashment, it was dishonored with endorsement ""refer to drawer"". Then the complainant gave report to

the police and they enquired the accused in his presence. They admitted their guilt and paid Rs. 15,000/- and promised that they will pay Rs.

9,000/- every month for a period of three months. On 8.6.88, they paid Rs. 9,000/-. Later, they issued a cheque dt. 20.4.89 for Rs. 18,000/- to

the Sub-Inspector of Police, Crime Branch, Egmore, towards the dues. After long delay, he handed over the cheque on 10.6.89. When presented

for encashment, it came dishonoured with endorsement ""exceeds arrangement"". Thus, once again they had cheated the complainant, Hence the

complaint.

Mr. V. Manoharan, the learned counsel appearing for the petitioner, would submit that the case taken on file by the learned Magistrate only for

offence u/s 138 Negotiable Instruments Act (which I shall hereafter refer to as ''the Act'') and that the cheque was presented beyond six months

from the date of the issue of the cheque and here the requirements necessary to make out offence u/s 138 of the Act are not available in this case

and so the taking cognizance of the case for offence u/s 138 of the Act by the learned Magistrate is not correct and liable to be quashed.

I have carefully considered the submissions made by the learned counsel. The cheque is dated 20.4.89. In the typed set, the copy of cheque

return memo is filed. That would show that it was returned for having been presented out of time. In the complaint, it is stated that the said cheque

was returned on 21.4.90. Neither there is any allegation that the statutory notice required u/s 138 of the Act was sent within 15 days of the date of

return of the cheque. The allegation is that the cheque was returned dishonoured on 21.4.90 and the complainant issued the registered notice on

22.5.90. The period of one month had elapsed in between and on this ground also the offence u/s 138 of the Act cannot be sustained. So. I am

clear that taking cognizance of the case for offence u/s 138 of the Act by the learned Magistrate is not correct and liable to be quashed. With

regard to the other offences alleged in the complaint, I do not propose to say anything in this order in as much as that has not come up for

consideration now before me. It is left to the parties to agitate their claim, if any, if so advised, with regard to the other offences alleged in the

complaint. With this observation, this petition is allowed and consequently the complaint in C.C. 4448/90 on the file of XVII Metropolitan

Magistrate, Saidapet is quashed so far as the offence u/s 138 of the Negotiable Instruments Act is concerned.