SREENIVASAN Vs. STATE OF KERALA

JUDGEMENT

(1.) THIS case has been filed under S. 482 Criminal Procedure code to quash the proceedings in C. C. No. 387 of 1998 on the file of the Judicial First Class Magistrate Court No. 1, Fort Cochin . The above said criminal prosecution was launched by the second respondent-complainant on the ground that the petitioner-accused herein borrowed a sum of Rs. 90,000/- on 24. 12. 1995 and another sum of Rs. 90,000/- on 30. 6. 1996 agreeing to repay the same on 30. 12. 1996 with 24% interest per annum and as a security for the payment of the above principal amount, he issued two cheques and also a promissory note in favour of the second respondent. Since the payment was not made as promised, the criminal complaint was filed by the second respondent.

(2.) THE learned counsel appearing for the petitioner would contend that the complaint itself is not in accordance with the provisions laid down in S. 138 of the Negotiable Instruments Act. According to the learned counsel, the cheque on the basis of which the criminal complaint was filed under S. 138 of the Negotiable Instruments Act ought to have been issued for the sole purpose of discharge of any previous debt or liability. In the instant case the complaint itself exfacie discloses that only as a security, the cheque was issued for the promissory note alleged to have been executed by the petitioner. For fortifying his contention, he also relies upon the decision of the Andhra Pradesh High Court in Taher N. Khambati v. Vinayak Enterprises (1995 (1) KLJ 556 =1995 (1) KLT SN 5. THEre it is held as follows: "in the instant case, the appellant advanced some money to the respondents and obtained a pronote. It was stipulated that the respondents should pay interest every month. At the same time appellant-creditor took a blank signed cheque from the respondents with the understanding that the complaint could fill the other columns in the cheque and present it if the respondents committed default in payment of interest. So, the appellant has obtained this blank signed cheque with a view to make use of it, as a threat to the respondents for realisation of the amount. So it cannot be construed that the respondent had issued the cheque voluntarily for discharge of any debt or legal liability as envisaged under S. 138. "