TMI Blog2018 (9) TMI 43X X X X Extracts X X X X X X X X Extracts X X X X ..... nce under Section 138 of Negotiable Instrument Act can be said to have been committed by the petitioner. The complaint against the petitioner is not maintainable and the respondent/complainant can very well proceed as against the second accused - quash petition allowed - decided in favor of petitioner. - Crl.O.P.(MD).No.13807 of 2011 M.P(MD).Nos.1 and 2 of 2011 - - - Dated:- 7-8-2018 - G. K. ILANTHIRAIYAN, J. For the Petitioners : Mr.T.Ramesh For Respondent : Mr.N.Sankar Ganesh ORDER This quash petition is filed to quash the complaint filed for the offence under Sections 138 and 142 of Negotiable Instrument Act against the petitioner and another. 2.The case of the complainant is that both the accused are kno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and the account is not belonged to him. The alleged cheque is not signed by him and his signature was forged by the respondent/complainant and presented the same. Therefore, the ingredients to attract the offence under Section 138 are not fulfilled by the respondent. Therefore, he prayed to quash the complaint insofar as the petitioner/first accused is concerned. 5.The learned counsel for the respondent would submit that the petitioner issued cheque after knowing very well that the account and the cheque book is belong to the second accused and signed the cheque. Therefore, it amounts to cheating and attract the offence under Section 138 of Negotiable Instrument Act and prayed for dismissal of the quash petition. 6.Heard the learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless (a) 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; (b) the payee or the holder in due course of the cheque, as the case may be, makes 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; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the hold ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... drawer of the cheque, within 15 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; (vi) the drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice. Being cumulative, it is only when all the aforementioned ingredients are satisfied that the person who had drawn the cheque can be deemed to have committed an offence under Section 138 of the Act. Considering the language used in Section 138 and taking note of background agreement pursuant to which a cheque is issued by more than one person, we are of the view that it is only the drawer of the cheque who can be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ogress. It is to be noted that only after issuance of process, a person can approach the High Court seeking quashing of the same on various grounds available to him. Accordingly, the High Court was clearly wrong in holding that the prayer of the appellant cannot even be considered. Further, the High Court itself has directed the Magistrate to carry out the process of admission/denial of documents. In such circumstances, it cannot be concluded that the trial is in advanced stage. 10.In view of the above, the complaint against the petitioner is not maintainable and the respondent/complainant can very well proceed as against the second accused. 11.Accordingly, this quash petition is allowed and the complaint in C.C.No.208 of 2010 on th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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