HANSA Vs. B MURALIDHARAN

JUDGEMENT

(1.) THE accused in C. C. No. 138 of 1993 on the file of the Judicial Magistrate, Mettupalayam, has filed this petition under section 482, Criminal Procedure Code, praying to call for the records in the above case and quash the same. THE short facts are : THE respondent has filed a private complaint against the petitioner for an offence under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "the Act"). THE allegations in it are briefly as follows : THE accused has issued a cheque on May 15, 1993, in his capacity as proprietor of Zareena Traders to the complainant, for Rs. 1, 00, 000. THE said sum is due to the complainant by the said Zareena Traders in which the accused is the proprietor. THE complainant presented the cheque for encashment through his bankers. It was dishonoured with the endorsement "funds insufficient". A memo to that effect was issued by the Canara Bank dated May 17, 1993. THE complainant issued a legal notice dated May 31, 1993, to the accused calling upon him to pay the cheque amount within 15 days of the receipt of the said notice. THE accused received the said notice on June 6, 1993. He did not pay the cheque amount. Hence, the complaint. Mr. B. S. Gnanadesikan, learned counsel appearing for the petitioner, would submit that only in a case where a cheque was issued for discharge of a legally enforceable liability and it was returned dishonoured for insufficiency of funds, is the offence under section 138 of the Act made out and the allegations made in the complaint do not set out a case that the cheque was issued for discharge of a legally enforceable liability and, hence, it is liable to be quashed. I have carefully considered the submissions made by Mr. B.S. Gnanadesikan, learned counsel for the petitioner. To consider the said submission, the relevant portions in the complaint needs extraction. It reads as follows :