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M/s. Blue Dot Leather, By its Proprietor Arumugam, Chennai v/s M/s. India Cement Capital & Finance Ltd., Rep. by its Assistant Manager, S. Venkitaraman

    Criminal Appeal No. 25 of 2017 & Crl.M.P. No. 618 of 2017

    Decided On, 03 August 2017

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MR. JUSTICE N. AUTHINATHAN

    For the Appellant: V. Narayanan, Advocate. For the Respondent: V.N. Amudhan, Advocate.



Judgment Text

(Prayer: Criminal Appeal is filed under Section 341 of the Code of Criminal Procedure, to set aside the order dated 05.11.2016 made in Crl.M.P.No.4635 of 2015 in C.A.No.266 of 2014 on the file of the learned III Additional Sessions Judge, Chennai.)

1. This Appeal is directed against the order dated 05.11.2016 in Crl.M.P.No.4635 of 2015 in C.A.No.266 of 2014 on the file of the learned III Additional Sessions Judge, Chennai.

2. M/s.India Cement Capital and Finance Ltd. / the respondent is the complainant in C.C.No.8452 of 2003 on the file of Fast Track Court No.II, Egmore, Chennai. Two cheques [one cheque bearing No.172807 dated 30.09.2002 for a sum of Rs.2,00,000/- and another cheque bearing No.172808 dated 30.11.2002 for a sum of Rs.1,10,000/-] are the subject matter of C.C.No.8452 of 2003. The complaint was filed against the appellant herein for the offence under Section 138 of the Negotiable Instruments Act, on the allegation that the said cheques were issued by him for the discharge of his liability and they were dishonoured when presented for collection.

3. The case of the appellant/accused before the learned Fast Track Court No.II, Egmore, Chennai in C.C.No.8452 of 2003 is that, he has handed over two unfilled signed cheques at the time of taking a loan from the respondent under Hire Purchase Scheme during the year 1997. The respondent obtained an award for the amounts due to it and the respondent has taken execution proceedings to recover the award amount and that, therefore the complaint for the offence under Section 138 of the Negotiable Instruments Act is liable to be dismissed. His defence is that, the cheques have been misused by the respondent and filed the present complaint. According to him, the respondent has filled in the blank cheques and put the date on the cheques [2002]. The Trial Court has accepted the case of the respondent and convicted the appellant/accused.

4. Aggrieved by the order of the conviction and sentence, the appellant has preferred C.A.No.266 of 2014 on the file of the learned III Additional Sessions Judge, Chennai. Pending disposal of the appeal, he has filed the Petition under Section 340 of Cr.P.C. requesting the Court to take action in terms of Section 340 of Cr.P.C against the respondent. According to him, an offence has been committed in respect of the cheques produced in C.C.No.8542 of 2003 and that, the act of the respondent is punishable under Section 193 IPC. The learned III Additional Sessions Judge, Chennai dismissed the Petition. The petition was held to be abuse of process of law. Aggrieved by the order dated 05.11.2016, the present Appeal has been filed.

5. The learned counsel appearing for the appellant would contend that the Court below failed to consider the materials on record and has erred in dismissing the Petition.

6. The learned counsel appearing for the respondent supported the impugned order.

7. I have heard the learned counsel on either side and perused the the grounds of appeal and the judgment of the Trial Court.

8. The request of the appellant to make a complaint under Section 340 of Cr.P.C. is based on the defence taken by him in the said Calender Case [C.C.No.8452 of 2003]. In N. NATARAJAN vs. B.K.SUBBA RAO reported in (2003) 2 SCC 76 the Hon'ble Supreme Court has observed thus: "By no stretch of imagination, can we say that the stand of a counsel, howsoever inconsistent it may be at different stages of the proceedings, can amount to offences adverted to under Section 195 Cr.P.C." It is true that the respondent herein obtained an award under Arbitration and Conciliation Act and has taken the execution proceedings. However, the Calender Case has been filed on the basis of the dishonoured cheques in question and they are said to have been issued by the appellant. The appellant has taken the defence in the case that the cheques were issued in the year 1997 and the respondent filled in the blank cheques. He disputed the genuineness of the cheques. Therefore, the genuineness of the cheques is the subject matter of the Calender Case. Contentious matters of fact cannot form basis for a complaint in terms of Section 340 of Cr.P.C.

9. It is significant to note that the appellant herein did not make an application to the learned Fast Track Court No.II, Egmore, Chennai in C.C.No.8452 of 2003 to make a complaint. The learned Magistrate after full trial has rejected the case of the app

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ellant and convicted him. The documents, namely, the cheques were not held to be fabricated documents. Under these circumstances, I am of the considered view that the appellant has not made out a case in terms of Section 340 of Cr.P.C. There is no sufficient ground for interfering with the impugned order of the Court below. Therefore, the appeal is liable to be dismissed. 10. In the result, this Criminal Appeal is dismissed. Consequently, connected Miscellaneous Petition is closed.
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