M AMOHAMED THAMEEM Vs. F M BILAL

JUDGEMENT

(1.) THE above Criminal Original Petitions have been filed by the accused in C.C.Nos.68 and 69 of 2005 on the file of the Judicial Magistrate, Thiruvarur.

(2.) THE accused is a tenant in respect of a building owned by the complainant / respondent herein on a monthly rent of Rs.30,000/-. As per the averments contained in the complaints the advance agreed to be paid was Rs.5,00,000/- and out of that a sum of Rs.3,02,000/- had already been paid by way of six cheques and out of the six cheques two cheques bearing Nos.139451 dated 09.01.2005 for Rs.70,000/- and 139453 dated 16.01.2005 for Rs.62,000/- both drawn on the Punjab National Bank, Thiruvarur, have been returned / dishonoured on presentation. As per the averments contained in the complaints inspite of receipt of the legal notice the amounts covered by the two cheques were not paid and hence the aforesaid two cases came to be filed for an offence under Section 138 of the Negotiable Instruments Act.

(3.) IN fine the submissions made by the learned counsel for the petitioner is that there is no legally enforceable debt and as such the two cheques in question cannot be considered to have been issued towards the discharge of any legally enforceable debt. When there is no legally enforceable debt the failure on the part of the tenant / the petitioner herein to comply with the demand contained in the legal notice will not give rise to a cause of action to file a complaint under Section 138 of the Negotiable INstruments Act. The further contention of the learned counsel for the petitioner is that while the legal notice is issued it has been stated that the cheques in question were issued towards the arrears of rent, but in the complaint it has been stated that the cheques were issued towards compliance of advance payable and it is further stated in the complaint that only due to over sight such a mistake has crept in the legal notice. According to the learned counsel, on this ground also the complaints are liable to be quashed.