(Prayer: Criminal Original Petition is filed under Section 482 of Cr.P.C, to call for the records relating to the S.T.C.No.1143 of 2017, on the file of the Judicial Magistrate No.4, Tiruchirappalli and quash the same as far as the petitioner is concerned.)1. The petitioner herein has filed this Criminal Original Petition for the relief to quash the case in S.T.C.No.1143 of 2017, on the file of the learned Judicial Magistrate No.4, Tiruchirappalli, as illegal.2. Before the trial Court, the case of the petitioner is that the petitioner herein is the Retailer of LG Products, having shops in the name of “AKKR LG Super Shoppee”. The respondent herein has pressurized the petitioner to made Purchase Order, dated 14.10.2016, for supply of 97 numbers of LG 321w300c Televisions and 225 numbers of LG 32 1x300c, as per three Invoices to the amount of Rs.57,96,000/-. For the said transactions, the Directors from the Respondent's Chennai Office has vowed the petitioner to issue 3 undated cheques only for security purposes, at the time of entering into the business. Accordingly, the petitioner issued three undated cheques, bearing Nos.675878, 675879 and 675880, drawn on State Bank of Travancore, Velachery, Chennai, in the name of M/s.SKY Communications Pvt Ltd. The petitioner, in any situation, has never agreed to pay any amount in three installments, as stated by the respondent. Further, the petitioner had not given any instruction or intimation to the respondent to present the above cheques in the respective dates, as alleged.3. On 31.05.2017, the respondent issued a legal notice to the petitioner, since the cheques were returned as “funds insufficient” and the same was suitably replied by the petitioner on 19.06.2017 by denying all the averments. Again on 14.07.2017, the respondent herein was purposefully presented the returned cheques for the second time, only to evade the bar of time limitation to institute the present bogus complaint.4. The respondent has issued the second legal notice dated 12.08.2017 to the petitioner by suppressing the earlier notice dated 31.05.2017 and to the same, the petitioner had replied on 21.08.2017. Since the second legal notice was served with the petitioner on 16.08.2017, the respondent is bound to file the complaint on or before 30.09.2017. Since 30.09.2017 was declared as holiday, it was filed on the next working day i.e., 03.10.2017, but to the shock and surprise, the petitioner received the summon along with the complaint and in the complaint copy, it was sealed as 3rd September 2017. This shows that the respondent has done some malpractice while filing the complaint.5. While at the time of hearing, the learned counsel appearing for the petitioner would reiterate the averments made in the petition and prayed to allow the application as the case filed against the petitioner, by the respondent, is an abuse of process of law.6. Repudiating the claim made by the petitioner, the learned counsel appearing for the respondent would submit that the respondent herein only by following the ingredients set out under Section 138 of Negotiable Instruments Act, 1881, has filed the complaint against the petitioner. Otherwise, the complaint has been presented before the Judicial Magistrate No.4, Tiruchirappalli is on 03.10.2017 and not by 03.09.2017, as alleged by the petitioner.7. Upon considering the arguments advanced by either side, the first and foremost contention raised by the learned counsel appearing for the petitioner is that filing the complaint based on the written endorsement made during the time of second presentation would affect the case of the complainant and therefore, the complaint filed by the respondent is liable to be quashed.8. Now, on considering the said submission with the relevant provisions made in Section 138(a) of Negotiable Instruments Act in which it was held that 'the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier'. Though the said provision is not clear in respect to the successive presentation, in this regard, in the Judgment of our Hon'ble Supreme Court in MSR Leathers Vs. S.Palaniappan and Another reported in (2013 (10) SCC 568), in paragraph No.7, it has been held that as follows:-“7. .... Therefore, it appears that the payee or the holder has a right to present the same as many number of times for encashment within a period of six months or within its validity period, whichever is earlier.”9. So, applying the principles set out in the above referred Judgment, here is the case, where the respondent herein presented the cheque for two times ie., within the period of six months from the date of cheque. Therefore, it cannot be said that the presentation of the cheque as a second time is a fatal to the present case.10. The second submission made by the learned counsel for the petitioner is that after issuing the legal Notice on 16.08.2017, presenting the complaint on 30.09.2017 itself is a false upon the respondent which shows that the complaint has been preferred in a prematured stage. In this regard, during the time of enquiry, there was a confusion over the date seal found in the complaint, for which, remarks were called for from the Judicial Magistrate concerned and in the remarks obtained by the Magistrate, he categorically mentioned that only on 03.10.2017, the respondent has presented the complaint for taking cognizance. In the Judgment in MSR Leathers case (cited supra) our Hon'ble Apex Court has held as follows:-“The first condition is that the cheque ought to have been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier. The second condition is that the payee or the holder in due course of the cheque, as the case may be, ought to 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 thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid. The third condition is that the drawer of such a cheque should have failed to make payment of the said amount of money to the payee or as the case may be, to the holder in due course of the cheque within fifteen days of the receipt of the said notice.”11. Herein also it is not in dispute that the respondent had presented the cheque as a last time within a period of six months and thereafter issued the legal notice with a request to repay the cheque amount within 15 days. After a lapse of the said 15 days, within one month, the respondent had filed the complaint and therefore, towards filing of the complaint, the law stipulated in Section 138 of Negotiable Instruments Act has strictly adhered by the respondent and then only the learned Judicial Magistrate No.4, Tiruchirappalli, took cognizance over the complaint presented by the respondent. In otherwise, in respect to the allegation levelled by the pe
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titioner, as he had given three unfilled cheques only as a security has to be decided only at the time of trial, since the same is a factual one.12. Accordingly, this Criminal Original Petition is dismissed.Since the case has been filed in the year of 2017, the learned Judicial Magistrate No.4 is directed to dispose of the same within a period of 4 months, after resuming the regular work. Consequently, the connected miscellaneous petitions are also dismissed.20.08.2020 Index: Yes/No Internet: Yes/No MPK Note : In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate/litigant concerned.