S. Arun Shankar vs P. Selvaraj

G. Rajasuria, J.—This petition is focused against the case in C.C. No. 53 of 2010 on the file of the learned Judicial Magistrate No. V, Tiruchirapalli.

Heard the learned Counsel for the Petitioner and the learned Counsel for the Respondent.

A re''sume'' of facts absolutely necessary and germane for the disposal of this petition would run thus:

The Respondent herein lodged a complaint before the Judicial Magistrate invoking Section 138 of Negotiable Instruments Act in view of the dishonor of the cheque. The present application is filed to quash the said petition mainly on the following three grounds:

(i) The impugned cheque itself was issued in view of the compromise arrived at between the parties and not in view of any pre-existing debt.

(ii) Subsequently, there was attachment of the properties of the accused by the customs authorities.

(iii) In the complaint there is no specification about the issuance of the notice by the Respondent and non-compliance by the accused.

The learned Counsel for the Petitioner/A2 placing reliance on those three grounds would develop her arguments to the effect that u/s 482 of Cr.P.C., this Court should interfere and quash the proceedings as for no fault on the part of the accused, he should not be harassed and made to undergo the ordeal, whereas the Petitioner could be compelled to undergo the rigmarole of trial if any there is prima-facie case made out, but in this case no prima-facie case is made out.

Whereas by way of torpedoing and pulverizing the said submissions, the learned Counsel for the Respondent would detail and delineate thus:

In the complaint itself it is clearly found set out that there exists a debt and consequent upon that alone the cheques were issued. Simply because the customs authorities attached the properties of the accused, there cannot be any legal bar for the complainant to set the criminal law in motion involving Section 138 of Negotiable Instruments Act. In paragraph 12 of the complaint details of issuance of notice by the Petitioner and non-compliance on the part of the Petitioner were set out.

I could see considerable force in the submissions made by the learned Counsel for the Respondent/complainant as absolutely there is nothing to indicate and exemplify that Section 482 of Code of Criminal Procedure is attracted in this case. In the facts and circumstances of the case, I hark back to the following decisions of the Honorable Apex Court in

Jeffrey J. Diermeier and Another Vs. State of West Bengal and Another, and

Preeti Gupta and Another Vs. State of Jharkhand and Another,

Further, I recollect and call up the maxim Quando aliquid mandatur, mandatur et omne per quod pervenitur ad illud. (When anything is commanded, everything by which it can be accomplished is also commanded.) In fact the Honorable Apex Court referred to the above said maxim and highlighted that Section 482 Code of Criminal Procedure emerged on that basis. The Honorable Apex Court in the aforesaid decisions clearly pointed out that only if there is no prima-facie case made out the question of High Court interfering u/s 482 would arise and if there is any shifting of evidence or analyzing of evidence is warranted, Section 482 Code of Criminal Procedure cannot be invoked.

The first contention of the learned Counsel for the Petitioner is that there were no pre-existing debts and it is not a question of fact. The averments in the complaint would express and expatiate that there were pre-existing debts and only for that alone the cheques were issued. As such the first contention raised by the learned Counsel for the Petitioner has no legs to stand.

The second contention of the learned Counsel for the Petitioner that the customs authorities attached the properties of the accused and therefore there is no financial capacity for the Petitioner to raise money by selling those properties, once again is a question of fact, which cannot be dealt with u/s 482 of Code of Criminal Procedure

The third contention of the learned Counsel for the Petitioner is that the complaint is bereft and niggard of details of pre-litigation statutory notice and consequent non-compliance. Paragraph 12 of the complaint properly contains those details and as such I am of the view that this Criminal Original Petition has to be dismissed.

Accordingly, the Criminal Original Petition is dismissed. Consequently, connected M.P. (MD) Nos. 1 and 2 of 2010 are dismissed and M.P. (MD) No. 3 of 2010 is closed. However, it is open for the Petitioner to raise all those contentions before the Magistrate and the Magistrate is expected to consider them as per law and dispose of the matter within a period of four months from the date of receipt of a copy of this order.