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M/S.ANANDAM AND CO., REP. BY versus M.SIRAJUDEEN

High Court of Madras

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M/s.Anandam and Co., rep. by v. M.Sirajudeen - CRL.OP.No.2189 of 2001 [2002] RD-TN 572 (8 August 2002)



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




Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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