N SIVARAJ Vs. LOGANATHAN

JUDGEMENT

(1.) Accused in C.C. No. 89 of 1991 on the file of the Chief Judicial Magistrate, Krishnagiri, has filed this petition under section 482 of the Code of Criminal Procedure to call for the records in the said case and to quash the same.

(2.) The short facts are: The respondent has filed a complaint under section 138 of the Negotiable Instruments Act, which I shall hereafter referred to as the Act". The allegations in the complaint are as follows: The complainant paid a sum of Rs. 50,000/- by way of demand draft dated 11.6.1990 drawn in favour of the accused. The accused had received the same and encased it. The complainant again paid a sum of Rs. 20,000/- in cash through one N. Meenakshi Sundaram to the accused. Both the amounts totalling to Rs. 70,000/- were paid to the accused on the representation made by the accused to the complainant that the said sum of Rs. 70,000/- has to be paid as capitation fee for securing admission to the complainant's son in M.B.A. course in Annamalai University. The complainant bona fide and in good faith believed the said representation and parted with the amounts. As the accused could not secure admission to the complainants son, the accused sent a checque for Rs. 70,000/- in lieu of the amount received by the accused from the complainant. The said cheque was dated 30.3.1991. When the complainant presented the same for collection, it was returned on 15.4.1991, as unpaid and with the endorsement refer to drawer. The cheque was dishonoured, as the accused had no funds to him credits. The complainant issued a registered notice on 22.4.199 1 calling upon him to pay the cheque amount. The accused had received the notice on 23.4.1991. But, he had not chosen to pay the amount. Hence, the complaint. To quash the said complaint, the petitioner has filed this petition.

(3.) Mr. M. Kandasami, learned counsel for the petitioner, would submit that to make out an offence under section 138 of the Act, the cheque must have been issued for illegally enforceable debt or liability and in the instant case, it was not so and hence, the complaint is liable to be quashed. I have heard Ms. Nappinnai on the above said submission.