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2020 (1) TMI 1353
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....r Section 138 of Negotiable Instruments Act before the learned District Munsif cum Judicial Magistrate, Thirukallukundram in C.C.No.25 of 2005 against the accused 1 and 2 viz., Tirupathiah and Chennappa Naidu in respect of dishonour of a cheque dated 31.10.1997 bearing No.423515 for a sum of Rs. 3,00,000/-. The above said cheque was alleged to have been issued by accused 1 and 2 to discharge the liability arising out of a sale transaction, where the respondent/ complainant had sold a land to the company in which the accused 1 and 2 are concerned. The cheque was presented for collection by the respondent was returned by the 1st accused bankers on 18.04.1998 as "Funds insufficient". Thereafter, the respondent/ complainant is alleged to have i....
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....al court without issuing notice and without following the procedure under Section 142 of Negotiable Instruments Act allowed the said petition. Filing a complaint without issuing statutory notice, itself is bad in law. Further, though the complaint was filed in the year 2005 and the statutory period of 30 days was over in the year 2005 itself, after a lapse of 4 years, the respondent filing a petition u/s.319 Cr.P.C for impleading the petitioner as an accused is unsustainable. 5. The learned counsel for the petitioner in support of his contention had relied upon the judgment of the Hon'ble Apex Court in N.Harihara Krishnan vs. J.Thomas reported in 2017 SCC OnLine SC 1017, wherein, it has been clearly held in paragraph No.33 that in th....
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.... 3rd accused filing the very similar type of petition is unsustainable. In support of her contention, she would rely upon the judgment of the Kerala High Court in M/s.Plywood House Vs. M/s.Wood Craft Products Ltd. and others reported in 1194 CRI.L.J.543, wherein it has been held that the 319 Cr.P.C empowers the court to proceed against any other person who appears to have committed any offence for which such person could be tried together with the accused already arraigned in the criminal case. Once the court decide to proceed against such other person then sub Section 4 says that the case may proceed as if such person had been an accused person when the court took cognizance of the offence upon which the inquiry or trial was commenced. In ....
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....who appears to have committed any offence for which such person could be tried together with the accused already arraigned in the case. Once the court decides to proceed against such other person then sub-sec (4) will save the earlier act of taking cognizance of the offence. Sub-sec (4) says that the case may proceed as if such person had been an accused person when the court took cognizance of the offence upon which the inquiry or trial was commenced. Subsequently, the Hon'ble Apex Court in N.Harihara Krishnan vs. J.Thomas reported in 2017 SCC OnLine SC 1017, had elaborately discussed about the impleading petition filed to initiate prosecution against the drawer beyond the period of limitation stipulated under the Act after the enactme....
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....sion of an offence under Section 138 is that inspite of the demand notice referred to above, the drawer of the cheque failed to make the payment within a period of 15 days from the date of the receipt of the demand. A fact which the complainant can only assert but not prove, the burden would essentially be on the drawer of the cheque to prove that he had in fact made the payment pursuant to the demand. By the nature of the offence under Section 138 of THE ACT, the first ingredient constituting the offence is the fact that a person drew a cheque. The identity of the drawer of the cheque is necessarily required to be known to the complainant (payee) and needs investigation and would not normally be in dispute unless the person who is alleg....