BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

Reserved on   : 07/04/2022

Pronounced on : 12/09/2022 CORAM:

THE HON’BLE MR JUSTICE G.ILANGOVAN

Crl.OP(MD)No.14336 of 2019 and

Crl.MP(MD)No.8654 of 2019 M.P.Srinivasan                 : Petitioner/Accused

Vs. K.Baskaran                     : Respondent/Complainant

Prayer: Criminal Original Petition is filed under Section 482 Cr.P.C., to call for the records relating to STC No.29 of 2017 pending on the file of the Judicial Magistrate, (Fast Track Court Level), Theni and quash the same as against the petitioner.

For Petitioner        : Mr.s.Vanchinathan      For Respondent        : Mr.S.A.Ajmal Khan

O R D E R

This criminal original petition is filed seeking quashment of the case in STC No.29 of 2017 on the file of the Judicial Magistrate (Fast Track Court Level), Theni.

2.The case of the prosecution is that the respondent lodged a complaint stating that for the purpose of meeting out the urgent expenses, the petitioner/accused borrowed Rs.8,50,000/-, on 20/12/2016 and promised to return the same within a year. When demand was made, he was delaying and later, on 06/10/2016, he issued a cheque for Rs.8,50,000/- drawn on Axis Bank, Paladdam Branch, Tirupur.

That was presented for payment in the City Union Bank,

Theni Branch, on 06/10/2016. That was returned as ‘Account Closed’, on 07/10/2016. The same was received by the complainant on the very same day. After completing the statutory formalities, the complaint was filed.  With the above said allegations, demand notice was sent, on 07/10/2016. That was received, on 08/11/2016.  Rejoinder was issued, on 21/11/2016.  Again reply rejoinder was received by the complainant, on 30/11/2016.

3.Seeking quashment of the same, this petition has been filed by the petitioner mainly on the ground that there was no relationship between him and the complainant, because, he is a resident of Coimbatore and doing a building contractor work; Since the complainant is a practising Advocate in Tirupur, he and his friends compelled the petitioner to settle the amount; Apart from that, it has been stated that within 30 days from the date of intimation of the dishonour, notice must be issued; The cheque was presented, on 06/11/2016; It was returned, on 07/10/2016; Notice was sent only, on 07/10/2016, which is the 32^nd day; So it is a statutory violation;  The actual date of borrowal neither stated in the demand notice, nor in the complaint.         4.Heard both sides.

5.Whether there was any acquaintance between them cannot be a matter for consideration in this petition, since, it is a factual aspect, it has to be established by way of evidence at the time of trial. Similarly, the contention that the date and place of borrowal has not been mentioned, either in the notice or in the complaint cannot be a matter for consideration also in this petition for the simple reason that it is a factual issue, which cannot be gone into by this court. It is a matter for evidence at the time of trial. The only legal ground, that has been advanced by the petitioner is that within 30 days or the knowledge of the dishonour, the statutory notice must be issued.  But here, it has been issued only on the 32^nd day. So according to him, this is the statutory violation. The cognizance that has been taken by the trial court itself is illegal one. So, this is the only point got to be addressed.

6.Records have been called for from the trial court to find out the actual date of sending the demand notice and other particulars. The date of dishonour is 07/10/2016. The reason is ‘Account Closed’. The demand notice is dated 07/11/2016.  This, according to the petitioner, is beyond the statutory period.

7.No doubt that the date of dishonour is 07/10/2016. It is admitted by the complaint to the effect that it was brought to the notice that he has received the dishonour memo on the date itself.  He sent notice, on 07/11/2016 that is on 31^th day.  Whether it is legal or not is the only point to be decided by this court. For that purpose, we can take the guidance from the Hon’ble Supreme Court in the case of A.C.Narayanan Vs. State of Maharashtra [(2014)11 SCC 790], wherein the Hon’ble Supreme Court, while answering the reference in view of the conflict judgment, has finally concluded that to resolve the dispute, reference can be made to section 9 of the General Clauses Act, 1897 and concluded that the date on which the information has been received must be excluded. When computing the period of 30 days, since it is a settled position of law, which is followed in subsequent cases also, the same view has been followed and relied upon. No further discussion is required. So excluding the date of receipt of the information, that is, on 07/10/2016, the notice that was sent on 07/11/2016 is well within a statutory limit.

8.Regarding the presentation of the complaint, it is seen that the complaint was presented on 26^th December 2016. Only the date of presentation has to be taken into account. The reply notice was sent by the accused person on 10/11/2016. On 28/11/2016, rejoinder notice was sent and that was received by the accused, on 30/11/2016 and the rejoinder was sent on 10/12/2016. So the limitation starts only from the date of rejoinder reply notice sent by the petitioner, namely 10/12/2016. So again it comes within the period of limitation. On that ground, it cannot quashed.

9.But the learned counsel appearing for the petitioner brought to the notice of this court one aspect to the effect that October 2016 carries 31 days. So if calculated 30 days even by excluding the date, the date of notice is 07/11/2016, which falls beyond the 30^th day.

10.When we go through the Calender of the month October’ 2016 and November, 2016, then it is seen that October’ 2016 carries 31 days and if calculated 30^th days, the next day is 06/11/2016. With one day delay, the above said statutory notice has been sent. So, it is a statutory violation.

11.But the learned counsel appearing for the respondent by relying upon the decision of this court in the case of Venture Softech India Private Limited Vs. Startup Xperts its Proprietor Poornima represented by Power Agent Shyam Sekar.S, Chennai, (Crl.OP No.21422 of 2016, dated 28/11/2016) would contend that it is a factual aspect, that cannot be gone into by this court at this stage; Even it is so, the respondent, can now even file a petition under section 142(1) of the Negotiable Instruments Act seeking condonation of delay. But this argument is totally misplaced. Because, that case was dealing with limitation period of filing the complaint and not the statutory violation with regard to the sending of demand notice. So that judgment will not help the case of the respondent.

12.Similarly the judgment of the Hon’ble Supreme Court in the case of Sicagen India Limited Vs. Mahindra Vadineni and others [(2019)4 SCC 271] will not help the case of the respondent for the reason that that was also dealing with some other issue as to the presentation of the cheque successively for encashment. So this judgment is also not helpful to the respondent. Since it is a statutory violation, the cognizance taken by the trial court itself is bad in law and it requires to be struck down.

13.In the result, this criminal original petition is allowed. The impugned proceedings in STC No.29 of 2017 on the file of the Judicial Magistrate (Fast Track Court Level), Theni is quashed. Consequently, connected Miscellaneous Petition is closed.

12.09.2022

Internet:Yes/No

Index:Yes/No er

G.ILANGOVAN,J.,

er

To,

The Judicial Magistrate,

(Fast Track Court Level) Theni.

Crl.O.P.(MD)No.14336 of 2019

12/09/2022