Criminal petition under Section 482 Cr.P.C. filed to quash proceedings in a cheque bounce case. Court held allegations made out a prima facie case as legal debt and dishonour were alleged, dismissing the petition.
Criminal petition seeking quashing of proceedings and NBW was dismissed.
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THE HON’BLE SRI JUSTICE K.C. BHANU CRIMINAL PETITION No. 423 of 2012
ORDER:
1. This criminal petition is filed under Section 482 Cr.P.C., seeking to quash all further proceedings, including appearance of the petitioner and execution of NBW issued in C.C.No.253 of 2009 on the file of the VIIIAdditional Chief Metropolitan Magistrate, at Hyderabad.
2. The 2nd respondent herein filed a private complaint before VII-Additional Chief Metropolitan Magistrate, Hyderabad, alleging that the petitioner requested him for a handloan of Rs.60,000/- and that he paid the same on 09.01.2008 and the petitioner executed a promissory note, promising to repay the amount by end of July 2008, and the petitioner also issued a post dated cheque bearing No.392981 dated 25.06.2008 for Rs.60,000/-, and the said cheque was dishonoured when presented for encashment, on the ground of ‘insufficient funds’. The 2nd respondent got issued a legal notice dated 11.08.2008 and that the petitioner did not comply with the demand of the 2nd respondent, and hence he filed a private complaint. The complaint was initially numbered as C.C.No.881 of 2008 and later it was transferred to the Court of VIII-Additional Chief Metropolitan Magistrate, Hyderabad, where it was renumbered as C.C.Nof.253 of 2009.
3. Learned counsel for the petitioner contended that there is no legally enforceable debt and therefore, he prays to quash the proceedings.
4. If the allegations in the complaint do not make out a prima facie case, then only the question of quashing the proceedings arises. The requirements under Section 138 of the Negotiable Instruments Act, 1881 (for short, NI Act), are that there must be a legally enforceable debt and the cheque has been issued for discharge of such debt and it was presented within the time of its validity and was dishonoured for ‘insufficient funds’, and the complaint has been filed within the period prescribed under law.
5. The complaint would go to show that the R2/complainant advanced an amount of Rs.60,000/- to the petitioner/accused and the petitioner executed a promissory note voluntarily on 09.01.2008. To discharge the debt, the petitioner issued post dated cheque, dated 25.06.2008. When the said cheque was presented for encashment, it was returned for ‘insufficient funds’. Thereafter, after giving statutory legal notice, the private complaint has been filed. Therefore, there are allegations which make out a prima facie case against the petitioner for the offence alleged and hence, the question of quashing of proceedings at this stage does not arise. Accordingly, the criminal petition is dismissed.
JUSTICE K.C. BHANU
19th January, 2012 KSM
2 issues framed by the court
Whether the allegations in the private complaint prima facie make out a case for the offence under Section 138 of the NI Act.
Whether the criminal petition filed under Section 482 Cr.P.C. seeking quashing of proceedings should be allowed.
2 provisions across 2 enactments
Petitioner
2nd Respondent
K. C. Bhanu
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
