ANITHA UPADHYAY Vs. MALABAR CHIT FUNDS PVT LTD

JUDGEMENT

(1.) The petitioner faces indictment in a prosecution under Sec.138 of the Negotiable Instruments Act. Cognizance has already been and process has been issued to the petitioner. The petitioner has not so far appeared personally before the learned Magistrate. She has entered appearance through counsel.

(2.) The petitioner has come to this Court with a prayer that the proceedings may be quashed. According to the petitioner, one demand promissory note and two signed blank cheques were handed over to the complaint when a loan transaction was entered into. On the basis of the demand promissory note a suit was instituted. The same has been decreed. Steps for execution are pending. Some amount has been recovered also, it is submitted. According to the petitioner, the present prosecution has been initiated on the basis of the blank signed cheques which were handed over to the complainant along with the demand promissory note at the time when the initial transaction was entered into as security. One of those two cheques is being misutilised by the complainant. The petitioner had called upon the complainant not to present those cheques and had filed a suit for return of the said two blank signed cheques handed over as security. It is at that juncture, the cheques have been presented and the present complaint filed. According to the petitioner, it amounts to an abuse of process of the court.

(3.) The case of the complainant is that the cheques were issued for the due discharge of the decree debt - that is to satisfy the decree which was passed on the strength of the demand promissory note. According to the complainant, the cheque was issued only subsequent to the decree and was not handed over as security. In defence in the suit, the present plea has not admittedly been raised by the petitioner. The learned counsel contends that permitting the present prosecution to continue would be transparent abuse of process of the court. In these circumstances, it is prayed that the proceedings may be quashed.