Anandi Susan Sharan Meili vs D. Vidya Sagar Rao

Arali Nagaraj, J.—The accused in C.C. No. 26918/2006 (PCR No. 420/2006), pending on the file of the learned XXIV Additional Chief Metropolitan Magistrate. Bangalore, (hereinafter referred to as ''Trial Court'' for short) has sought for quashing of entire proceedings in the said case.

Though this matter is listed today for admission, having regard to the nature of the relief sought for and the facts and circumstances of the case. it is taken for final disposal and the arguments of Sri. B. Anand, the learned Counsel for the petitioner and Sri. Guruprasad. the learned Counsel for the respondent-complainant are heard. Perused the averments in the complaint filed by the respondent herein before the Trial Court u/s 200 Cr.P.C. against the petitioner. Also perused the impugned Order issuing process against the petitioner for the offence u/s 138 of Negotiable Instruments Act.

Stated in brief the case of the complainant as averred in his complaint u/s 200 Cr.P.C. is as under:

(a) Accused No. 1 is the chief functionary of Women for Sustainable. Development (WSD). Accused No. 2 is a Project. Director of Agricultural Development and Training Society (ADATS), having its office as shown m the cause title. Accused Nos. 1 and 2 approached the complainant requesting the complainant to help in their project and. accordingly they entered into an agreement with the complainant agreeing to pay to the complainant a sum of Rs. 25.00.000/in respect of their project.

(b) The accused issued a cheque dated 23.11.2005 for Rs. 5.00.000/- in terms of the said agreement. When the complainant presented the said cheque to the Bank, it came to be returned with endorsement as ''payment stopped by Drawer''. Thereafter. the complainant issued to the accused statutory notice calling upon the accused to make payments under the said cheque. The accused, despite receipt of the said notice, did not comply with it. Therefore, the complainant filed the said complaint against the accused alleging that by issuing the said cheque, accused Nos. 1 and 2 committed an offence u/s 138 of Negotiable Instruments Act.

Sri. B.S. Anand, the learned Counsel for the petitioner (Al) strongly contends that the said cheque was issued by the accused to the complainant, as she agreed to help the complainant in the project but it was not issued towards discharge of any existing legally enforceable debt or other liability due to the complainant by the accused and therefore, the entire averments in the complaint even if taken at their face value and to their entirely. they do not constitute all the ingredients of Section 138 of Negotiable Instruments Act, and hence all further proceedings in the said case deserve to be quashed.

Per Contra, Sri. Guruprasad. the learned Counsel for the respondent complainant strongly contends that. though the complainant has not averred in the complaint in specific terms that the said cheque was issued by the petitioner-accused towards discharge of any debt or liability. it could be gathered from the averments of the complaint that the said cheque was issued by the accused to the complainant towards the work done by the complainant. Therefore, proceedings in the said case cannot be quashed.

It is the settled principle that existence of legally enforceable debt, payable by the accused to the complainant as on the date of issuing of the cheque in question is to be averred by the complainant in his complaint filed u/s 200 Cr.P.C. against the accused alleging the commission of offence u/s 138 of Negotiable Instruments Act.

7 On careful reading of the averments in the said complaint. it could be seen that it is averred by the complainant that the said cheque was issued for Rs. 5.00.000/- for doing the work. Thus, it is clear that the cheque was not issued by the accused to the complainant towards discharge of any existing legally enforceable debt payable by him to the complainant. When the necessary averment as to this main ingredient of Section 138 of Negotiable Instruments Act is missing in the complaint and since averment therein as to any work being carried out by the complainant for the accused to hold that the accused issued the said cheque in consideration of the said work the proceedings in the said case cannot be allowed to be continued.

Further. Sri. Guruprasad. the learned Counsel for the respondent-complainant placing reliance on the order of this Court dated 2.4.2009 passed in Crl. P. No. 3116/2007. that was filed by accused No. 2 in the said case seeking quashing of the entire proceedings in that said case contended that this Court was pleased to dismiss the said application holding that the grounds urged by the petitioner therein could be urged before the Trial Court and hence no ground was shown to entertain the said petition, therefore the present petition also deserves to be dismissed. I have gone through the order passed in the said petition u/s 482 Cr.P.C. The absence of averment in the complaint as to existence of legally enforceable debts payable by this petitioner-accused to the complainant as on the date of the cheque in question was not considered by this Court in the said order. Therefore. this petition cannot be admitted on the basis of the said order.

It is a settled principle that if the averments in the complaint, taken at their face value, do not constitute ingredients of any cognizable offence, the High Court would be justified in quashing the proceedings in the criminal case in exercise of its inherent powers u/s 482 Cr.P.C. Therefore. I am of the, considered opinion that dismissal of the said petition by this Court does not come in the way of deciding the present petition on merits by considering the averments in the complaint filed by the respondent before the Trial Court. Since the said averments do not disclose the main ingredient of Section 138 of Negotiable Instruments Act. viz., existence of legally enforceable debt- payable by the. petitioner to the respondent as on the date of the cheque in question, the present petition deserves in be allowed. Hence the following.

ORDER

The present petition filed u/s 482 Cr.P.C. by the petitioner, who is accused No. 1 in C.C. No. 26918/2006 (PCR No. 420/2006). pending on the file of the learned XXIV Additional Chief Metropolitan Magistrate. Bangalore is hereby allowed. The entire proceedings in the said case are hereby quashed as against the petitioner herein is who is accused No. 1 in the said case.