P. Manivannan, Age 40 Years, v. M/S. Arul Construction,

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 24.02.2022

CORAM

THE HON'BLE Mr. JUSTICE G.CHANDRASEKHARAN Crl.O.P.No.22550 of 2016 and Crl.M.P.No.3624 of 2017 P. Manivannan .. Petitioner Vs.

M/s. Arul Construction, Proprietor, Mrs. Deepika Vinohar Old No.42/65, P.S. Sivasamy Salai, Mylapore, Chennai - 600 004.

New No.25/69, 3rd Street, Railway Colony, Aminjikarai, Chennai - 600 029, Represented by its Power Agent, Mr.D.Udhayakumar .. Respondent Prayer: Criminal Original Petition is filed under Section 482 of Criminal Procedure Code, to call for the entire records in pursuant to C.C.No.174 of 2015 on the file of the Court of XVIII Metropolitan Magistrate, Saidapet, Chennai-15 and quash the same. For Petitioner : Mr. T.P. Prabakaran For Respondent : Ms. J.Sumathi for Ms. D. Selvakumari

O R D E R

Crl.O.P.No.22550/2016 is filed to call for the records in C.C.No.174/2015 on the file of XVIII Metropolitan Magistrate, Saidapet, Chennai and quash the same.

2.

C.C.No.174/2005 was filed for the offence under Section 138 of Negotiable Instruments Act, by the respondent, against the petitioner.

3.

The allegations made against the petitioner in the complaint is that the respondent is a proprietorship concern engaged in construction business. There was an agreement between respondent and petitioner on 09.05.2011 to purchase the

flat in Arul Paradise at Flat No.C-1, second floor, No.4, Anantha Raman Street, Radha Nagar Main Road, Chromepet, Chennai600 044. Petitioner issued a cheque for a sum of Rs.5,50,000/- to discharge the liabilities to the respondent vide cheque No.066693 dated 28.11.2012 drawn on Indian Overseas Bank, Gemini Circle Branch at No.297, Cathedral Road, Chennai - 600 086. On the request of the petitioner, the respondent presented the cheque on 23.02.2013 through his Bankers, HDFC Bank Ltd., Radhakrishnan Salai, Mylapore Branch, Chennai - 600 004. This cheque was returned unpaid stating "payment stopped" by return memo dated 23.02.2013. It was intimated by the respondent on the same day.

Respondent caused a legal notice dated 05.03.2013, through his client, demanding the payment for the above said cheque amount. Petitioner received the notice and sent a reply dated 22.03.2013. Petitioner failed to pay the entire cheque amount within 15 days as mentioned in the notice. Therefore, this complaint was filed. Now the petitioner filed this quash petition to quash the complaint.

4.

Learned counsel for the petitioner submitted that the petitioner had made the entire payment of Rs.50,20,000/- as per the following details:- SI.

No.

Date Particulars of Payment Amount paid Remarks 1.

09.05.2011 Paid by the petitioner towards own contribution for purchase of flat Rs.10,20,000/- Receipt No.578 2.

20.06.2011 Payment released to the respondent by Indian Overseas Bank (housing loan) Rs.15,00,000/- 3.

25.06.2011 Payment released to the respondent by Indian Overseas Bank (housing loan) Rs.10,00,000/- 4.

22.09.2011 Payment released to the respondent by Indian Overseas Bank (housing loan) Rs.5,00,000/- 5.

11.02.2012 Payment released to the respondent by Indian Overseas Bank (housing loan) Rs.5,00,000/-

SI.

No.

Date Particulars of Payment Amount paid Remarks 6.

13.07.2012 Payment released to the respondent by Indian Overseas Bank (housing loan) Rs.5,00,000/- 5.

Therefore, there is no amount liable to be paid by the petitioner to the respondent. The cheque which was issued only as security is misused for filing this case. When there is no subsisting legally enforceable debt or liability, presenting the cheque which was given as security and filing a case on the basis of the return for the reason "payment stopped", cannot be legally maintained. Therefore, he prays for quashing the complaint.

6.

Per contra, the learned counsel for the respondent submitted that the payments in Sl.Nos.2 to 6 are accepted by the respondent, but the payment said to have made on 09.05.2011 to the tune of Rs.10,20,000/- is not accepted. On 09.05.2011, the petitioner had paid Rs.4,70,000/- in cash and for the balance Rs.5,50,000/-, he issued the cheque. When the cheque was presented by the respondent, it was returned for the reason "payment stopped". Therefore, there is a case made out under Section 138 of Negotiable Instruments Act, against the petitioner, and she prays for dismissal of this petition. 7.

In reply, the learned counsel for the petitioner brought to the notice of this Court the receipt dated 09.05.2011, to show that it is clearly mentioned in the receipt that the entire sum of Rs.10,20,000/- was paid in cash. He also drew the attention of this Court to the letter dated 11.12.2012 sent by the respondent to the petitioner claiming that he had to pay only Rs.50,000/-. Therefore, he reiterated his submission that there was no subsisting debt or liability to warrant the prosecution of the case under Section 138 of Negotiable Instruments Act.

8.

In response to this, the learned counsel for the respondent submitted that a sum of Rs.50,000/- claimed in notice dated 11.12.2012 is not related to the construction cost. It relates to other expenses like electricity, water tax connection etc. The cheque was dishonoured without sufficient funds and for that reason payment was stopped. The ingredients to constitute the offence under Section 138 of Negotiable Instruments Act are made out in this case.

9.

Considered the rival submission and perused the records.

10.

It is seen from the submission of the learned counsel appearing for the parties, there is no dispute that there was an agreement between parties with regard to purchase of the flat. Respondent claims that petitioner has to pay a sum of Rs.5,50,000/- to the respondent. Respondent admits all the payments except the amount covered by the impugned cheque i.e., Rs.5,50,000/-. Respondent claims that though the receipt was issued for Rs.10,20,000/- claiming that it was paid through cash on 09.05.2011, in reality, petitioner paid only Rs.4,70,000/- in cash and issued cheque for Rs.5,50,000/-. This receipt was issued only to help the petitioner to raise the loan from the bank.

11.

Thus, it is clear from the submission of the learned counsel appearing for the parties that there is a dispute with regard to the payment of Rs.5,50,000/-. This is a disputed fact and evidence of the parties is required to find out the truth or falsity of the case propounded by both the parties. This Court cannot go into the disputed of question of fact while deciding this petition.

12.

Admittedly, the cheque was returned for the reason that payment was stopped by the petitioner. It is not known as to whether there was sufficient amount in the bank account of the petitioner or not at the time, when the cheque was returned. Evidence is required to elicit this fact. Therefore, this Court finds that this is not a fit case for quashing. In view of the same, this petition is dismissed. Consequently, connected miscellaneous petition is closed.

Sd/- Assistant Registrar(CS-IV) //True Copy// Sub Assistant Registrar AT To 1.The XVIII Metropolitan Magistrate, Saidapet.

+1cc to Mr.T.P.Prabakaran, Advocate, S.R.No.12441 +1cc to M/s.D.Selvakumari, Advocate, S.R.No.12957 Crl.O.P.No.22550 of 2016 and Crl.M.P.No.3624 of 2017 MT(CO) SB(25/03/2022)