IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 18.02.2010 CORAM THE HONOURABLE MR. JUSTICE C.T.SELVAM CRL.O.P.No.26341 of 2006 and M.P.No.1 of 2006 P.Kishore Kumar ..Petitioner -Vs- G.Muralidharan ..Respondent Criminal Original Petition filed under Section 482 of Criminal Procedure Code to call for the records in C.C.No.9425 of 2006 on the file of the learned III Metropolitan Magistrate, George Town, Chennai and quash the same. For Petitioner : Mr.D.Aruna For Respondent : Mr.S.J.Jagadev O R D E R The petitioner who is the 3rd accused in C.C.No.9425 of 2006 on the file of the learned III Metropolitan Magistrate, George Town, Chennai seeks to quash proceedings in such case. 2.The said case has been filed by the respondent/complainant against six persons informing that the 2nd accused is his brother and apart from other business, the 2nd accused and the respondent/complainant as also their father had been running a business under the name of 'Jolly Wines' at Kilpauk, Chennai from 1989. Though, earlier the license to the said business stood in the name of the 2nd accused, the same was transferred to that of the respondent/complainant from the year 2001. Moneys were borrowed for the family business mainly by the 2nd accused from the 1st accused who was a financier. On the instructions of the 2nd accused, the respondent/complainant had issued over 100 cheque leaves in blank from the account of 'Jolly Wines' to the financier, the 1st accused. 24 of such cheques had been encashed. Unused cheques numbering 76 have been retained by the 1st accused. All the cheques were given in the year 2002 and the business of running the wine shop was closed due to Government take over in September 2003. The 2nd accused https://hcservices.ecourts.gov.in/hcservices/ shifted the entire liability of the family business to the respondent/ complainant taking advantage of the fact that the license stood in his name. The 1st and 2nd accused acting in collusion with accused 3 to 6 were making false claims against the respondent/complainant by filling up the blank cheques in the name of the certain unknown persons, presenting the cheques and subsequently, proceeding under Section 138 of the Negotiable Instruments Act (hereinafter referred as Act). As regards the notice of demand issued under Section 138 of the Act by accused 3 to 6, the respondent/complainant states that he had nothing to do with such persons and such persons acting in collusion with accused 1 and 2 had falsely filled up the cheques issued in blank and were making false claims thereupon. 3.As the accused 1 and 2 were likely to misuse the other blank cheques retained by the 1st accused, the respondent/complainant preferred a complaint on 20.03.2006 to the Commissioner of Police, Egmore, Chennai against them which was enquired into by the Inspector of Police, J.J.Nagar Police Station, Chennai who directed the accused 1 and 2 not to misuse the remaining unused cheques lying with the 1st accused. The 1st accused had subsequently, sent a representation dated 02.05.2006 to the said Inspector stating that the police cannot restrain him from using further, the remaining unused cheques. 4.The petitioner has sought to quash the complaint against him on the contention that admittedly the cheques have been issued by the accused, 24 of which have been duly encashed, and notice under Section 138 of the Act had been issued by the petitioner as early as on 14.09.2004 and in November 2004, the petitioner preferred C.C.No.11979 of 2004 which was pending on the file of the VIII Metropolitan Magistrate, George Town, Chennai. In circumstances, where no specific allegation had been averred against the petitioner in the complaint and the respondent himself had admitted that he has authorised his brother to borrow amounts towards running the business by him and his family members, even if it be taken that the respondent/complainant had no knowledge of the issuance of the cheque, the petitioner cannot be blamed for lending money to the respondent/complainant and his family. The only remedy open to the respondent/complainant would be to raise a defence in the case pending against him in C.C.No.11979 of 2004 on the file of the VIII Metropolitan Magistrate, George Town, Chennai. The respondent/complainant was acting malafidely and this will borne out by the fact that though he had received notice in September 2004, he had preferred a complaint to the police only in the year 2006. Allowing a complaint such as the present one to stand would lead to a situation where all persons accused of offences under Section 138 of the Negotiable Instruments Act would take the similar plea. https://hcservices.ecourts.gov.in/hcservices/ 5.The above contentions are raised by the learned counsel for the petitioner and I have heard Mr.S.J.Jagadev, learned counsel for the respondent on the submissions made by Mr.D.Aruna, learned counsel for the petitioner. 6.The learned counsel for the respondent submits that in entertaining a petition to quash proceedings in a complaint case, this Court is required to appreciate the contents of complaint without adding or subtracting anything therefrom. If on such appreciation offences seem to be made out then it would not be for this Court to interfere. 7.On a perusal of the complaint, this Court is of the view that if true, the allegations therein would make out commission of offences. It might be that the petitioner is prosecuting a case alleging commission of offence under Section 138 of the Act by the respondent/complainant herein. But, in the circumstances of the case, that by itself would not lead to the inference that the complaint case presently challenged is malafide or an abuse of process. For the above reasons, the Criminal Original Petition shall stand dismissed. Consequently, the connected miscellaneous petition is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar gm To 1. The III Metropolitan Magistrate, George Town, Chennai. 2. -do- Through The Chief Metropolitan Magistrate, Egmore, Chennai-8. + 1 c.c. to Mr. S.J. Jagadev, Advocate. S.R.No.11066. CRL.O.P.No.26341 of 2006 and M.P.No.1 of 2006 BS (CO) GSK 02.03.2010. https://hcservices.ecourts.gov.in/hcservices/