V SITHARA FILM ACTRESS Vs. A RAJU

JUDGEMENT

(1.) The petitioner is the accused in a prosecution under Section 138 of the Negotiable Instruments Act. Cognizance has been taken on the basis of the complaint filed by the respondent herein. The respondent, in paragraph 1 of the complaint, has averred that the cheque was issued by the accused to the complainant towards an amount of Rs.8,20,000/-, which was due to him. A notice of demand was issued prior to the launching of the prosecution. It had evoked a reply (copy of which is produced as Annexure A2). Signature in the cheque is admitted though a contention is raised that there was no transaction between the complainant and the accused. It was further alleged that a blank signed cheque was handed over to one Swamiji, who has expired. The complainant, it is suggested, had came into possession of the said blank signed cheque and was attempting to misutilise the same to stake a totally false claim. The petitioner has, now come to this court, with the prayer that the proceedings initiated against him under Section 138 of the Negotiable Instruments Act may be quashed. The learned counsel for the petitioner raises two grounds to justify his prayer for issue of directions under Section 482 Cr.P.C.

(2.) Firstly, it is contended that there is no allegation that the cheque was issued for the due discharge of any legally enforcible debt or liability. That is the fundamental ingredient to establish the offence under Section 138 of the Negotiable Instruments Act. Such allegation having not been raised, the prosecution is liable to be quashed, it is urged. I am unable to accept such contention in as much as it is very clearly shown in paragraph 1 of the complaint that the cheque is issued towards an amount of Rs.8,20,000/- due to the complainant/respondent from the accused. In the wake of such specific assertion, I find no merit in the contention that the details of the said liability must have been pleaded by the complainant in the complaint. Unlike in a civil case, foundation of liability need not be pleaded and established in a prosecution under Section 138 of the Negotiable Instruments Act. It is sufficient if the crucial assertion is made that the cheque is issued for the due discharge of a legally enforcible debt/liability. In the wake of such specific pleadings in paragraph 1, I find no merit in the contention raised.

(3.) The next contention raised by the learned counsel for the petitioner is that the presumption under Section 139 of the Negotiable Instruments Act is not available to the petitioner. The signature in the cheque is admitted. There is a specific assertion that the cheque was issued for the discharge of a liability of Rs.8,20,000/- due to the complainant from the accused. In the light of that specific assertion, the contention that the presumption under Section 139 of the Negotiable Instruments Act cannot be invoked and that the proceedings are liable to be quashed on that ground cannot also be accepted. I may hasten to observe that I am not intending to express any opinion on the question whether presumption under Section 139 of the Negotiable Instruments Act can be raised and if raised, has been discharged by the accused. It is for the parties to raise relevant contentions before the learned Magistrate. I take the view only that, at this stage invoking powers under Section 482 Cr.P.C, the prosecution does not deserve to be quashed.