IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 08/08/2002 CORAM THE HONOURABLE MR.JUSTICE A.PACKIARAJ CRL.OP.No.2189 of 2001 and Crl.M.P.Nos.862 and 863 of 2001 1. M/s.Anandam and Co., rep. by Mr.Anandan, Managing Partner 34, Mill Gate Road, Coimbatore. 2. Anandan 3. Savari Muthu 4. Joseph .. Petitioners. Versus M.Sirajudeen .. Respondent. !For Petitioners: Mr.C.Sundaravadivel ^For Respondent: Mr.Liagat Ali Prayer: Petition filed to quash the proceedings in C.C.No.5961 of 200 0, on the file of XVI Metropolitan Magistrate Court, Chennai. :O R D E R
This is an application to quash the proceedings in C.C.No.5961 of 20
00, on the file of XVI Metropolitan Magistrate, filed against the petitioners
for the offences punishable under Section 138, 141 and 142 of the Negotiable
Instruments Act (hereinafter referred to as `the Act’).
2. It may not be necessary to go deep into the facts and
circumstances of the averments mentioned in the complaint. Suffice it to
state that the accused herein have issued cheques towards pre-existing
liability to the complainant, which on their presentation, were returned on
the ground of `insufficient funds’. Subsequently, after observing all the
formalities contemplated under the Act, the present prosecution has been
launched.
3. The argument of the learned counsel for the petitioners is that
the complaint only discloses the fact of A-1, A-2 and A-4 having received the
notices, while the third accused refused to receive the notice and
accordingly, the prosecution has been launched. Therefore, according to the
counsel, there is no mention in the complaint to the effect that in spite of
the notice being sent and waiting for the mandatory period of 15 days, the
amount has not yet been paid.
4. In other words, the learned counsel for the petitioners would urge
that the complaint is totally silent as regards the fifth ingredient as to
whether the amount due has been paid to the complainant or not and on that
score alone, the complaint is liable to be quashed.
5. Therefore, the narrowed compass of consideration in this case is
that the complainant should have necessarily averred in his complaint that he
after having issued the notice, waited for 15 days, enabling the petitioners
to pay the money and he should also have specifically averred in his complaint
that in spite of waiting for 15 days also, the money has not been paid and
hence the complaint.
6. At the outset, the argument appears to be well-founded. However,
the Magistrate is entitled to take cognizance not solely on the complaint
alone, but also on the sworn statement. Therefore, on going through the
records and on seeing the sworn statement, the complainant has on oath, stated
that he had issued the notices which had been received by A-1, A-2 and A-4,
while A-3 has refused to do so and that the money has not been paid and
thereupon the prosecution has been launched. Therefore, in effect the fifth
ingredient has also been specified. Consequently I am not able to agree with
the argument of the learned counsel.
7. The other point raised by the counsel is that he has paid the said
amount by way of Demand Drafts and he has documentary proof of the same and
hence, if the present prosecution is permitted to continue, it would amount to
abuse of process of Court. I am not in a position to accept the above
contention, for the simp le reason that the Apex Court has time and again
stated that in a case of a private complaint, the Court while hearing a
petition under Section 482 Cr.P.C can go only with the complaint and the
documents filed along with that, if any filed by the complainant and nothing
else. So this document which the learned counsel for the petitioners would
urge, is a fresh document having been produced for the first time in Court and
this Court is precluded from looking in to the same. However, it is open for
the petitioners to bring this on record during the course of trial and
establish their case.
6. With these observations, this petition is dismissed.
Consequently, connected Crl.M.P is closed.
Csh
08-08-2002
Index:Yes
Internet:Yes
A.PACKIARAJ,J.
Crl.O.P.No.2189 of 2001