D NAPOLEAN Vs. M V M TRADERS

JUDGEMENT

(1.) The sole accused who is facing prosecution for the offence under Section 138 of the Negotiable Instruments Act, has filed the present petition seeking to quash the proceedings.

(2.) A reading of the complaint reveals the fact that the petitioner along with Vijaya Prakash, representing Global Media Works and Anand allegedly approached the respondent during the 3rd week of October 2016, seeking for a loan of Rs.1,10,00,000/-, for the purpose of taking a movie. The respondent also agreed to give the loan. Accordingly a sum of Rs.60,00,000/- was transferred by the respondent from his current account to the Bank account of Global Media Works. A further sum of Rs.10,00,000/- was transferred by the respondent from his current account to the account of Global Media Works by way of RTGS transfer and a further sum of Rs.40,00,000/- was paid by way of cash on 12.12.2016 to the said Global Media Works. As such a total sum of Rs. 1,10,00,000/- was borrowed by the Global Media Works represented by Vijaya Prakash. The further case in the complaint is that the said Vijay Prakash and Anand have paid a sum of Rs.56,46,000/- and they failed to pay the balance amount. Subsequently, the petitioner along with Vijay Prakash and Anand paid further sum of Rs.25,00,000/-. Later the petitioner has issued a post dated cheque dated 15.07.2017 in favour of the respondent for a sum of Rs.28,54,000/-. When this cheque was presented, the same was dishonoured on the ground "payment stopped by the drawer". Subsequently, statutory notice was issued and a complaint has been filed by the respondent against the petitioner.

(3.) Mr.John Sathyan, learned Counsel appearing for the petitioner would submit that the respondent has not established the existence and subsisting liability / enforceable debt against the petitioner and therefore complaint itself is liable to be quashed. The learned Counsel would further submit that the petitioner only stood as a guarantor and as per the recitals in Ex.P 2 and Ex.P 3, the liability was primarily on the above said Vijaya Prakash and Anand who had given cheque to the respondent and the petitioner gave assurance that if in case Vijaya Prakash and Anand did not pay the amount, the petitioner will take the responsibility and repay the amount and the petitioner gave his cheques only as a security. The learned Counsel would further submit that the entire complaint is silent with regard to the cheques given by Vijay Prakash and Anand and it is not known whether they had paid the balance amount to the respondent. Therefore, the learned counsel would submit the contingency to pay the balance amount will arise for the petitioner only if the above said Vijaya Prakash and Anand fail to make payment and till then, there is no subsisting lability/ legally enforceable debt insofar as the petitioner is concerned.