- (1.)These are five petitions filed by the Petitioner/accused under S. 482 of Cr. P. C. to call for the records in C. C. No. 1067/94, 1071/94, 1070/94, 1069/94 and 1068/94 on the file of X Metropolitan Magistrate, Egmore, Madras and quash the same.
(2.)All these five Criminal Original Petition Nos. were heard together, and the petitioner and respondent are one and the same in all these five petitions, and the contentions raised by them are similar, and these five petitions are being disposed of by way of a common order.
(3.)The material allegations in these five petitions are identical and they are as follows :- The petitioner was in need of capital for his business. The respondent offered to provide financial help and paid Rupees three lakhs on 17-5-1993. An agreement was reduced into writing by which clause 5 the petitioner has to pay Rs. 15,000/- per month apart from 50% of the profits. Clause 6 provides that if the petitioner (sic) wants to withdraw his amount, he should give one months notice after a period of one year. Later the respondent pressed for his money back against cl. (6) of the agreement. Since the petitioner was not having ready cash, the petitioner gave 15 post dated cheques towards repayment and also gave his wife's property to the respondents mother by a power of attorney dated 11-3-1994 to sell the same to liquidate the loan and return the cheques. The value of the house was about Rupees 10 to 12 lakhs and the loan amount on that day was about Rupees 7 lakhs and odd. All of a sudden the petitoner received a legal notice on 17-11-1994 calling upon him to pay a sum of Rupees 6,35,000/- arising out of the amount issued by way of post dated cheques. The petitioner issued a reply on 6-12-1994, bringing all the facts to the respondent's counsel that the amount of Rupees 1,23,000/- was paid by demand draft and property worth Rupees 7,88,500/- was given to her mother and Rs. 40,000/- was paid totalling a sum of Rupees 9,51,500/- and thereby an excess amount of Rupees 6,500/- was with the respondent, and on the date of notice there is no debt or liability enforceable against the petitioner. The respondent having taken Rupees 9,51,500/- towards the loan retained the cheques with him and has filed the above five complaints before the Magistrate's Court and the proceedings are liable to be quashed. There was no legally enforceable debt or liability on the date of filing of the five complaints. The notice was not served on the petitioner since he was out of station. Only on 6-12-1994 he came ot know about the notice and he replied immediately. On the complaint the cause of action is not mentioned as to which date was to be taken as the crucial date for calculating the time for filing the complaints. The provision in S. 138(c) of the Act is silent in such cases where the amount is not due and payable. The trial Court proceeded without looking into the legality and the application of the provision of law. Hence these petitions are filed to quash the proceedings before the trial Magistrate.