whether the petitioner has occasion to seek financial help from the complainant or not, whether the petitioner issued the cheques or not, whether the complainant is a stranger to the petitioner or not and as to how the cheques came into possession of the complainant, are the matters required to be resolved during the course of trial. Since the allegations made out prima facie case under Section 138 of the Act, question of quashing the proceedings does not arise.
|CRLP 966 / 2013||CRLPSR 2406 / 2013|
THE HON'BLE SRI JUSTICE K.C.BHANU
CRIMINAL PETITION NOS.966 AND 967 OF 2013
These two petitions are filed by the petitioner-accused under Section 482 Cr.P.C. to quash the proceedings in C.C.Nos.302 and 303 of 2008 respectively on the file of Additional Judicial Magistrate of I Class, Kadiri, which were taken on file for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short ‘the Act’)
2. It is alleged in the complaint that the accused borrowed Rs.7 lakhs on 01-11-2006, Rs.5 lakhs, Rs.5 lakhs and Rs.5 lakhs on 18-04-2007 and executed promissory notes in favour of the complainant agreeing to repay the same with interest at 24% per annum. On demand, the accused issued a cheque for Rs.13,24,666/- on 25-08-2008 and another cheque for Rs.16,70,000/- on 18-08-2008 drawn on Axis Bank, Anantapur, towards discharge of part of the loan amount. When the said cheques were presented for encashment, they were returned with an endorsement ‘funds insufficient’. After giving statutory legal notice, the complaints were filed.
3. Learned counsel appearing for the petitioner contended that the petitioner has not issued the cheques, that the petitioner does not know the complainant at all, that she is a permanent resident of Anantapur by virtue of her employment as Assistant Professor, that there was no occasion for her to seek financial help from any body much less the complainant and hence, continuation of proceedings is nothing but abuse of process of law.
4. Section 138 of the Act deals with ‘dishonour of cheque for insufficiency, etc. of funds in the account. Necessary ingredients to be established by the complainant are :
(a) a cheque is drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account in the discharge in whole or in part of any debt or other liability;
(b) the cheque is returned by the bank unpaid either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank;
(c) 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;
(d) 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
(e) 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 holder in due course of the cheque, within fifteen days of the receipt of the said notice.
5. The cheques were dishonoured for insufficient funds. The signatures on the cheques have not been denied anywhere. Once issuance of cheque is admitted, the presumption is that it was issued for legally enforceable debt or liability.
6. Learned counsel for the petitioner submits that there was no demand with regard to actual amounts of the cheques and the relief sought for in the notices is only to recover the amount. That aspect of the case can be resolved during the trial of the case. Similarly, whether the petitioner has occasion to seek financial help from the complainant or not, whether the petitioner issued the cheques or not, whether the complainant is a stranger to the petitioner or not and as to how the cheques came into possession of the complainant, are the matters required to be resolved during the course of trial. Since the allegations made out prima facie case under Section 138 of the Act, question of quashing the proceedings does not arise.
7. Accordingly, the Criminal Petitions are dismissed. Observations, if any, made in this order are only for the purpose of the disposal of the present petitions and uninfluenced by any of the observations, the trial Court shall dispose of the cases in accordance with law.
8. Miscellaneous petitions, if any, pending in these Criminal Petitions shall stand closed.