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BINARY SYSTEMS PVT. LTD. VERSUS NOBEL POWER PVT. LTD.

    No:

    Decided On, 09 August 1991

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MR. JUSTICE PRATAP SINGH

    For the Appearing Parties: R. Muthukrishnan, Advocate.



Judgment Text

Pratap Singh, J.


(1) THE accused 1 and 2 in C. C. No. 8697 of 1990 on the file of XVII Metropolitan Magistrate, Saidapet, Madras have filed this petition under section 482, Criminal Procedure Code praying to call for the records in the aforesaid c. C. No. 8697/90 and quash the same.


(2) THE respondent has filed the private complaint against the petitioners herein, arraying them as accused 1 and 2 under Section 138, Negotiable Instruments Act. The allegations in it are briefly as follows : "the first accused is a registered company. The second accused is carrying on business as Chairman and Director of the first accused company. Towards supply to computer related electronic items by them to the accused a cheque for rs. 25,900, dated 31. 7. 1990 was issued by the first accused company in favour of the complainant. It was signed by the accused No. 2 and another Director. It was returned to the complainant with an endorsement "exceeds arrangement" on 17. 8. 1990. On the same day, the complainant wrote to the first accused giving information about the dishonour of the cheque. The accused sent a reply on 22. 8. 1990. On 30. 8. 1990, the Marketing Director of the complainant company called on the second accused. The second accused informed the Marketing Director of the complainant that cheque may be represented after 10 days and he would provide funds for payment of the cheque amount. The complainant represented the cheque on 14. 9. 1990. On 25. 9. 1990, the cheque was returned with endorsement "stop payment". The complainant sent letter to the accused informing the return of the cheque and demanding payment. The accused had received that letter but had not paid the amount. On both occasions, when the cheque was returned, it was due to the fact that sufficient funds were not available. Hence the complaint. "


(3) MR. R. Muthukrishnan, the learned Counsel appearing for the petitioner would contend that the complain is time-barred. He contended that cheque was returned on 17. 8. 1990 and notice of dishonour was sent by the complainant to the accused and accused had replied on 22. 8. 1990 and the complaint was filed on 29. 10. 1990 and in between 22. 8. 1990 and 29. 10. 1990 more than two months have elapsed and that only 15 days time is to be given for payment of the amount due under the dishonoured cheque and if that payment was not made, the complaint should be filed within a month therefrom and in this case, the complaint was filed beyond that period and hence barred by time. This argument is totally oblivious of the fact that the dishonour of the cheque on 17. 8. 1990 is not made the subject-matter of the complaint. According to the complainant, on the request made by the second accused, the cheque was represented for collection on 14. 9. 1990 and it was dishonoured and returned with endorsement 'stop payment' on 25. 9. 1990. This presentation of the cheque on 4. 9. 1990 was within six months from the date of issue of the cheque viz. , 31. 7. 1990. After the cheque was returned, the complainant had sent a notice and there was a reply and no payment was made on the dishonoured cheque and then the complaint was laid on 29. 10. 1990. The complainant had sent notice of demand on 25. 9. 1990, as per the allegations made in the complaint. Though the date of receipt of the notice by the accused is not mentioned, the period between 25. 9. 1990 to 29. 10. 1990 is 34 days. At any time, after the expiry of 15 days of receipt of notice, but within a month thereof the complaint has been laid. Hence the complaint is prima facie in time.


(4) THE learned Counsel further contended that the cheque returned with an endorsement 'stop payment' and it was not returned due to insufficiency of funds because it exceeds the amount arranged to be paid and hence offence under section 138 of the Negotiable Instruments Act was not committed :


"On the latter occasion, the cheque has been returned with the endorsement 'stop payment'. The complainant submit that the accused have acted diabolically. On both occasions, when the cheque reached the accused's bank in bangalore for collection sufficient funds were not available resulting in the dishonour of the cheque. Those are the positive allegations in the complaint to the effect that only due to the insufficiency of funds the cheque was returned but diabolically the accused had acted and the cheque was returned with the endorsement 'stop payment'. So it is to be seen only during the course of trial whether the cheque was returned unpaid d

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ue to the insufficiency of funds as alleged in para 4 of the complaint or otherwise and when there are positive allegations to the effect in the complaint that cheque was returned due to insufficiency of funds, those allegations cannot be ignored and the complaint quashed at the threshold. For those allegations are true or not can be tested only during trial. That stage has not yet come. " (5) IN view of the above, the petition does not deserve admission and is dismissed. Petition dismissed.
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