SENTHIL KUMAR Vs. K.K. SATHISHKUMAR

JUDGEMENT

(1.) The petitioner/accused has come forward with this petition for quashing the proceedings under Section 138 of the Negotiable Instruments Act, 1881, in S.T.C. No. 170 of 2011 on the file of the learned Judicial Magistrate, Bhavani.

(2.) The learned counsel for the petitioner submitted that the impugned cheque has not been given for discharging the legally enforceable subsisting debt. He would submit that it was stolen by the respondent/complainant and the same has been utilized and misused by him along with some other persons and hence, he prayed for quashing of the proceedings in STC.No.170 of 2011. When petitioner's wife was on the family way he was away from his residence and at that time, the respondent along with other persons has looted his house and taken away the jewelleries, amount, documents, cheque books etc., and on his return, he has given the complaint. The learned counsel would further submit that since the complaint given by the petitioner was not registered, he approached this Court under Section 482 of the Criminal Procedure Code and on the direction of this Court in Cri. O. P. No. 19032 of 2010, dated 23.08.2010, a case has been registered. Only after receiving the statutory notice, the petitioner came to know that the respondent has misused the cheque. Hence, prayed for quashing the proceeding in S.T.C.No.170 of 2011.

(3.) The learned counsel for the respondent/complainant would submit that the cheque dated 17.07.2010, but after return of the cheque only, this complaint has been given and the case has been registered. So it is only after thought. So the cheque has been given for discharging legally subsisting liability. He further submitted that the issue involved in this case is only a question of fact and that can be decided only at the time of trial. Hence, he prayed for dismissal of the petition.