M.Pichandi Maistry, v. R.Ponraj,

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 08.06.2018

CORAM

THE HONOURABLE MR.JUSTICE P.N.PRAKASH Crl.O.P.No.15073 of 2018 and Crl.M.P.Nos.7606 and 7607 of 2018 M.Pichandi Maistry .. Petitioner/Accused Vs R.Ponraj .. Respondent/complainant Criminal Original Petition filed under Section 482 Cr.P.C. to call for the records and quash the proceedings C.C.No.86 of 2017 on the file of the Fast Track Court at Alandur. For Petitioner : Mr.S.Sugendran

O R D E R

This petition has been filed to call for the records and quash C.C.No.86 of 2017 on the file of the Fast Track Court at Alandur.

2. For the sake of convenience, the petitioner and the respondent will be referred to as the accused and the complainant.

3. It is the case of the complainant that he is a building contractor and that he is also doing timber business. The accused purchased timber and issued a cheque dated 25.03.2015 bearing number 529886 drawn on Corporation Bank, Velachery Branch for Rs.1,30,000/-; the complainant presented the cheque and the same was returned on 29.04.2015 for "insufficient funds" and that the complainant issued a notice dated 11.05.2015 to the accused, despite which, the accused did not make payment. Hence, the complainant has initiated a prosecution in C.C.No.86 of 2017 under Section 138 of the Negotiable Instruments Act, 1881 against the accused and the same is now pending on the file of the Fast Track Court at Alandur, for quashing which, the accused is before this Court.

4. Heard Mr.S.Sugendran, learned counsel for the accused, who submitted that the cheque was returned on 28.03.2015, whereas, the notice in this case was issued only on 11.05.2015. In support of this contention, Mr.Sugendran, produced a letter https://hcservices.ecourts.gov.in/hcservices/

of Axis Bank Limited, which states that the impugned cheque was returned on 28.03.2015. Hence, Mr.Sugendran contended that, the statutory notice dated 11.05.2015 is beyond 30 days and therefore, the prosecution is vitiated.

5. At the outset, his submissions did look attractive, but on a closer scrutiny of the complaint, it is seen that the prosecution is predicated on the return of the cheque, vide returning advice dated 29.04.2015. The issuance of legal notice on 11.05.2015 which is within 30 days from 29.04.2015 cannot be said to be violative of Section 138 of the Negotiable Instruments Act. Even in the statutory notice dated 11.05.2015, the complainant has stated that the cheque was returned on 29.04.2015. In the list of documents of the complainant, the document no.2 reads as "original return advice dated 29.04.2015". Thus, when there are prima facie materials to show that the original return advice is dated 29.04.2015, this Court cannot rely upon the document submitted along with the typed set of papers and come to a conclusion that the cheque was returned on 28.03.2015 since it is a disputed question of fact, which cannot be gone into in a quash application.

Hence, this petition is dismissed with liberty to the petitioner to raise all these points during trial before the trial Court. Whatever is observed herein is only for deciding the quash application and the trial Court shall proceed with the trial without in any manner being influenced by what is stated above.

Sd/- Assistant Registrar(CS III) //True Copy// Sub Assistant Registrar gms To 1.Fast Track Court, Alandur.

+1cc to Mr.S.Sugendran, Advocate sr.no.35806 Crl.O.P.No.15073 of 2018 nr 20/06/2018 https://hcservices.ecourts.gov.in/hcservices/