Decided on June 01,2020

Ravindranath Ge Medical Associates Private Limited Appellant
P Raja Rao Respondents


P.N.Prakash, J. - (1.) This Criminal Original Petition has been filed seeking to quash the prosecution in S.T.C.No.630 of 2013 on the file of the Judicial Magistrate No.1, (Fast Track Court), Madurai.
(2.) For the sake of convenience, the petitioner and the respondent will be referred to as 'accused' and 'complainant' respectively.
(3.) Before adverting to the referral order, it will be apposite to narrate the facts: 3.1. It is the case of the complainant that the accused borrowed a sum of Rs.2,25,000/- (Rupees Two Lakhs and Twenty Five Thousand only) on 12.01.2011 as loan promising to repay the same with interest at 24% p.a. Towards the said debt, the accused issued a cheque dated 12.04.2013 for Rs.3,46,500/- (Rupees Three Lakhs Forty Six Thousand and Five Hundred only). The complainant presented the said cheque for collection on 18.04.2013 and the same was returned unpaid with the endorsement 'Funds Insufficient' on 19.04.2013. 3.2. The complainant issued a statutory demand notice on 30.04.2013 to the accused and on receipt of the same, the accused sent a reply notice dated 03.05.2013 repudiating the debt. Therefore, the complainant filed a complaint in S.T.C.No.630 of 2013 for the offence under Section 138 of the Negotiable Instruments Act, on 08.05.2013, in the Court of Judicial Magistrate No.1 (Fast Track Court), Madurai, against the accused. After a tiresome exercise by the complainant, the accused appeared before the Magistrate and after a few hearings, absconded and that necessitated the Magistrate to issue warrant to secure the accused on 12.07.2016. Ultimately, on 04.04.2017, the accused surrendered before the Magistrate, pursuant to which, the warrant was recalled and the trial began. 3.3. The complainant was examined as P.W.1 on 13.06.2017 and the accused was questioned under Section 313(i)(b) Cr.P.C., on 29.06.2017. Opportunity was given to the accused to produce defence witnesses, but she filed a petition under Section 311 Cr.P.C., to recall the complainant/P.W.1 for cross-examination. The complainant was subjected to cross-examination on 03.10.2017, 25.10.2017 and 09.11.2017. Thereafter, the matter was adjourned for arguments from time to time. While so, the accused filed Crl.O.P(MD)No.5109 of 2018 before this Court on 28.03.2018 under Section 482 Cr.P.C., for quashing the prosecution on the ground that the complainant had filed the complaint before the expiry of fifteen days period envisaged by Section 138(c) of the Negotiable Instruments Act. In essence, the grievance of the accused is that the statutory notice was issued by the complainant on 30.04.2013; she had filed the complaint on 08.05.2013; the Court had recorded the sworn statement of the complainant on 09.05.2013 and taken cognizance of the offence. 3.4. When the matter was taken up for hearing, it was brought to the knowledge of the learned Single Judge that there were two conflicting views on this aspect. A learned Single Judge of this Court (Pratap Singh, J.) in V.Suresh Kumar v. C.Sreekrishnan, 1995 83 CompCas 103 (Madras) took the view that a complaint filed within fifteen days of the issuance of the statutory demand notice cannot be maintained. However, another learned Single Judge (S.Vimala,J.) in Sagaya Arockia Raj v. Ganesh Kumar, 2017 1 MadLJ(Cri) 226, took a different view and held that after the accused had repudiated the debt by issuing a reply notice to the statutory demand notice, there is no necessity for the complainant to wait for fifteen days to present the complaint. On account of these divergent views, the learned Single Judge who heard this case, referred the matter to a Division Bench by order dated 10.08.2018 and the reference reads thus: "20. There is apparent conflict of views in the judgment referred supra and reported in 2017 (1) MLJ (Crl) 226 and judgment referred herein above, reported in 1995 (83) Comp Cas 103 (Mad). 21. One more important issue that needs to be answered in cases of this nature is that what happens if the drawer of the cheque initially denies the liability and issues a reply notice and thereafter changes his mind to pay the cheque amount within a period of 15 days provided under Section 138 (c) of Negotiable Instruments Act? 22. Yet another question that needs to be answered is, where a legislature specifically provides for a waiting period of 15 days for the cause of action to arise to file a criminal complaint under Section 138 of the Act, in a plain and simple language, whether the Court can read something into it and cut short the 15 days period, more particularly, when the penal statute always requires strict interpretation. 23. In view of conflicting decisions of two learned single Judges of this Court on the same issue and in view of the importance of resolving the important question of law that has arisen for consideration, this Court deems it fit to place the matter before a Division Bench in order to resolve the conflict and to come out with an authoritative pronouncement. 24. For the reasons stated above, this Court directs the Registry to place this matter before the Hon'ble Administrative Judge, so as to enable the Hon'ble Administrative Judge to consider constituting a Bench in order to hear the issue and to resolve the conflict and make an authoritative pronouncement on the issue." 3.5. Ergo, this Division Bench came to be constituted to answer the reference.;

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