R SEVERAL Vs. LOGANTHAN

JUDGEMENT

(1.) The 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, 1973, 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, 1881, which I shall hereafter refer 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 June 11, 1990, drawn in favour of the accused. The accused had received the same and encashed 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 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 of the complainant's son to the 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 complainant's son, the accused sent a cheque for Rs. 70,000 in lieu of the amount received by the accused from the complainant. The said cheque was dated March 30, 1991. When the complainant presented the same for collection, it was returned on April 15, 1991, as unpaid and with the endorsement "refer to drawer". The cheque was dishonoured, as the accused had no funds to his credit. The complainant issued a registered notice on April 22, 1991, calling upon him to pay the cheque amount. The accused had received the notice on April 23, 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 a legally 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. N. S. Nappinnai on the abovesaid submission.