IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 06.08.2009 CORAM: THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN Crl.OP.No.5421/2003 Cr.MP.No.1951/2003 1.N.Sundar 2.K.Rajkumar Petitioners Vs 1.Sridhar Roadwas by Proprietor T.P.Thangaraj, Wallajapet, Vellore 2.Anjali Enterprises, Chennai-2 3.S.Venkataraman Respondents 4. Prayer:- This Criminal Original Petition is filed to call for the records and quash the proceedings in CC.No.245/2001 on the file of the Judicial Magistrate II, Wallajapet, Vellore District. For Petitioner : Mr.A.Anbarasu For Respondent : Mr.V.K.Rajagopalan ORDER The Petitioners, who are arrayed as A2 and A3, have filed this Criminal Original Petition to quash the complaint in CC.No.245/2001 on the file of the Judicial Magistrate II, Wallajapet, Vellore District. 2. According to the averments made in the complaint, A1 is the Company by name M/s.Anjali Enterprises, who is the 2nd Respondent herein and A2 to A4 are the partners of the A1 Company. The 1st Respondent/ complainant had business transaction with the accused and as per the accounts, the accused were liable to pay a sum of Rs.1,53,800/- to the complainant. In discharge of the said amount, the accused issued a cheque bearing No.026372 dated 18.7.2001 to the complainant for a sum of Rs.1,53,800/- drawn on M/s.Lakshmi Vilas Bank Limited. The complainant presented the said cheque for collection through the Indian Bank, Vellore on 18.7.2001, but the said cheque was returned on 26.7.2001, stating that the cheque could not be honoured due to closing of the account. https://hcservices.ecourts.gov.in/hcservices/ 3. It has been specifically averred in the complaint that the A2 to A4 are the partners of A1 Company and they were in charge of and responsible for the conduct of the business of the Company. Since the accused failed to pay the cheque amount, the complaint has been filed by the 1st Respondent/complainant. 4. The main contention of the Petitioners is that there was no business transaction between the Petitioners and complainant and therefore, there was no legally enforceable debt much less Rs.1,53,800/- payable by the Petitioners to the 1st Respondent. The Petitioners have also challenged the notice issued by the 1st Respondent on the ground that it is not in consonance with Section 138 of the Negotiable Instruments Act. It is further submitted by the Petitioners that the Partnership Firm was dissolved orally with the consent of all the partners and the Firm became non existent from the end of September 1999 and therefore, the cheque dated 18.7.2001 could not have been issued by the third accused. 5. At the outset, it is to be noted that both the Petitioners have filed a petition before the learned Magistrate to drop the proceedings against them, raising the same contentions before the learned Magistrate, who in turn has dismissed the petition on the ground that all those contentions could be raised only at the time of trial. Admittedly, they have not filed any revision as against this order. 6. It is well settled that except in very exceptional circumstances, the court would not look into any document relied on by the accused in support of his defence and while exercising jurisdiction under Section 482 of Code of Criminal Procedure, this court is required to consider only as to whether the allegations made in the complaint fulfill the ingredients of the offence alleged against the accused. 7. Under Section 139 of the Negotiable Instruments Act, the court has to presume unless contrary is proved that the holder of the cheque had received the cheque for discharge in whole or part of a debt or liability. However, the burden of proving that the cheque has not been issued for a debt or liability is on the accused. In the case of K.N.Beena Vs. Muniyappan and another [2001-8-SCC-458], the Honourable Supreme Court has held that in view of the provisions contained in Sections 118 and 139 of the Negotiable Instruments Act, the court has to presume that the cheques had been issued for discharging the debt or liability, however, the said presumption could be refuted by the accused by proving in the trial. It further held on facts that mere denial or refutal by the accused in reply to the legal notice sent by the complainant is not sufficient and the accused has to prove by cogent evidence that there was no liability or debt. 8. In the present case, though the Petitioners have https://hcservices.ecourts.gov.in/hcservices/ contended that there was no legally enforceable debt or liability and the cheque has not been issued by the 3rd accused, the same cannot be decided at this stage and it is for the Petitioners to prove that there was no legally enforceable debt or liability by letting in evidence. 9. The other contention raised by the learned counsel for the Petitioners is that there was no proper notice as contemplated under proviso to clause (b) of Section 138 of the Negotiable Instruments Act and no averment is there in the complaint as to whether the notice was served on the Petitioner and therefore it cannot be said that there was a cause of action for the complaint. 10. On a perusal of the certified copy of the complaint, it is seen that there is an averment in the complaint to the effect that the cheque was presented for collection on 18.7.2001, was returned on the same day and the same was intimated to the complainant on 26.7.2001 by the Indian Bank, Wallajapet. It is stated that the complainant has sent the notice to the accused on 7.8.2001 and received the reply from the Petitioners on 18.8.2001. It could be presumed that the notice of demand had been served on the Petitioners. 11. Section 138(b) of the Negotiable Instruments Act stipulates that the payee or the holder in due course of the cheque as the case may be should make a demand for the payment of the said amount of money by giving a notice in writing to the drawer of the cheque within 15 days of the receipt of the information by him from the bank regarding the return of the cheque as unpaid. In this case, the Respondent issued the notice well within time as contemplated under Section 138(b) of the Negotiable Instruments Act. The above said legal requirement has been complied with by the 1st Respondent. It is prima facie seen that there is issuance of the cheque, non payment thereon on presentation, issuance of valid notice, calling upon the drawer of the cheque to pay the amount in question and the Petitioners' failure to pay to the complainant the amount in question within 15 days from the receipt of the notice served upon them and the cause of action had arisen for filing the complaint. Hence, there is no merit in this Criminal Original Petition and accordingly, it is dismissed. No costs. Consequently, the connected MP is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ Srcm To: 1.The Judicial Magistrate II, Wallajapet, Vellore District +1cc to Mr.V.K.Rajagopalan, Advocate Sr 36200 TEJ(CO) km/14.8. Crl.OP.No.5421/2003 https://hcservices.ecourts.gov.in/hcservices/