Sukanthi vs Jothi Vasanthalakshmi

M. Sathyanarayanan, J.—The petitioner is the sole accused in C.C. No. 578/2009 pending on the file of the V metropolitan Magistrate, Egmore, Chennai, and he has filed this petition for quashment of the said case. A perusal of the complaint would disclose that the accused. After obtaining hand loan from the complainant, undertook to pay the same with interest @ 18% p.a. and the amount due and payable was Rs. 7,98,500/- and after repeating requests, the accused has issued a cheque dated 20.08.2008 drawn on Canara Bank, Shenoy Nagar Branch, Chennai-30, for a sum of Rs. 5,9,500/- towards part pay ment of the loan amount it is further averred that the said cheque, on presentation on that day itself, returned with an endorsement "Funds Insufficient" vide memo dated 22.08.2008. Thereafter, a statutory notice was issued on 22.08.2008 for which a reply was sent by the petitioner/accused on 20.09.2008.

Mr. R. Karthikeyan, learned counsel appearing for the petitioner would submit that in the statutory notice material and relevant particulars namely, the date of the cheque, the bank in which it was drawn, have not been disclosed and in the reply issued on behalf of the petitioner/accused at para 6 it has been specifically pointed out that since the notice is bereft of material particulars. The complaint itself is not maintainable and prays for quashment of the same.

Per contra, Mr. L. Rajasekar learned counsel appearing for the respondent has drawn the attention of this Court to the counter affidavit and would submit that the accused has sent a reply in response to the statutory notice which would reveal that he is aware of the relevant particulars and in any event, he has not been put to any prejudice. It is further submitted by the learned counsel appearing for the respondent that the initial burden lies on the complainant and she is optimistic that she would prove the guilt on the part of the accused and hence prays for dismissal of this petition.

This Court has carefully considered the rival submissions and also perused the typed set of documents.

A perusal of the statutory notice dated 22.08.2008 would disclose that the details with regard to the date of the cheque and the bank in which it was drawn has not been disclosed and the accused sent a reply dated 20.09.2008 through her advocate, wherein she has took a specific stand that she is hardly in a position to know which cheque the statutory notice is referring to and further took a stand that the notice is defective.

In Rahul Builders Vs. Arihant Fertilizers and Chemical and Another, the facts of the case would disclose that after dishonor of the cheque, a statutory notice was sent wherein it has been stated that the cheque No. 693336 dated 30.04.2000 for a sum of Rs. 1 lakh has been returned and passed by the bank authorities stating that account No. 1461 has already been closed and therefore, and called upon the accused to remit the payment within 10 days from the date of receipt of the notice. The Hon''ble Supreme Court of India in the said decision, has taken into consideration its earlier decisions and on the facts of the case, held that no demand was made for the payment of cheque amount and therefore, a quashment of the proceedings by the High Court was perfectly justified.

A perusal of the statutory notice dated 22.08.2008 would disclose that the date of the cheque name of the bank in which it was drawn, has not been disclosed. The issuance of a statutory notice is not an empty formality and the drawer of the cheque is put on notice to make the payment within 15 days from the date of receipt of the notice. The defects in the notice were pointed out in the reply sent through a lawyer on behalf of the accused and though the complaint refers to the said reply, she brushed aside the stand taken in the reply by stating that the allegations are vague and unsubstantiated.

In the considered opinion of the court, in the absence of relevant materials particulars in the statutory notice, the accused has been put to prejudice and at the earliest point of time, while sending the reply, it was also pointed out that the statutory notice is bereft of material particulars. In the considered opinion of the court, the non-stating of relevant particulars such as date of cheque, the bank in which it was drawn are vital to the case of the complainant. In the result this Criminal Original Petition is allowed and the proceedings in C.C. No. 578/2009, pending on the file of the V Metropolitan Magistrate, Egmore, Chennai is quashed. Consequently, the connected miscellaneous petition is closed.