S. Thangavelu vs K. Duraisamy

R. Regupathi, J.—The petitioner is an accused for an offence punishable u/s 420 IPC as per the private complaint preferred before the

learned Judicial Magistrate No. III, Erode. The learned Judicial Magistrate, after recording sworn statement and statements of witnesses, passed

an order impugned taking cognizance of the offence punishable u/s 420 IPC as well as Section 138 of the Negotiable Instruments Act.

The learned Counsel for the petitioner submits that it is the positive case of the complainant that though the cheque has been issued by the

petitioner, the account was not maintained by him and his signature also differs. Under such circumstances, offence punishable u/s 138 read with

142 of the Negotiable Instruments Act will not be maintainable and the learned Magistrate has erroneously taken cognizance of the offence u/s 138

read with 142 of the Negotiable Instruments Act and seeks to quash the cognizance taken as against the offence u/s 138 read with 142 of

Negotiable Instruments Act alone.

I have heard the submissions made on either side and perused the materials available on record.

A legal notice dated 28.07.2006 has been issued wherein offence u/s 420 IPC alone has been mentioned. It is the positive case of the

complainant in the private complaint dated 11.09.2006 that offence u/s 420 IPC has been made made out. In the sworn statement also, it has been

made clear by the de facto complainant that the account has not been maintained by the accused and that the cheque has been returned by stating

that the specimen signature differs from the signature found in the bank and the account has been maintained by one Deepa Devi. Section 138 of

the Negotiable Instruments Act reads as follows:

Dishonour of cheque for insufficiency, etc., of funds in the account.- Where any cheque drawn by a person on an account maintained by him

with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or

other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour

the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be

deemed to have committed an offence....

I am of the considered opinion that the learned Magistrate cannot take cognizance suo motu an offence without any pleadings and materials.

Prima facie materials are not available in the case to constitute an offence u/s 138 of the Negotiable Instruments Act. However, the cognizance

taken for offence punishable u/s 420 IPC is not disputed by the petitioner/accused.

Therefore, I am of the considered opinion that taking cognizance of the offence punishable u/s 138 read with 142 of the Negotiable Instruments

Act alone is liable to be quashed and accordingly the same is quashed. However, the learned Judicial Magistrate No. III, Erode is directed to

proceed with the case of the petitioner in accordance with law for an offence punishable u/s 420 IPC. Since the case is pending from the year

2006 onwards, the trial of the case may be taken on priority basis and concluded at the earliest.

With the above direction, this Criminal Original Petition is disposed of. Consequently, connected miscellaneous petition is closed.