BATTU SATYA MURTHY Vs. VIDYANJALI EDUCATIONAL SOCIETY

JUDGEMENT

(1.) This criminal petition, under Sec. 482 Cr. P.C., has been filed challenging the order dtd. 25/8/2012 passed by the learned I Additional Judicial Magistrate of First Class, Tadepalligudem, in CC S.R. No. 7237 of 2011, dismissing the complaint filed by the petitioner herein under Sec. 138 of the Negotiable Instruments Act, 1881 (for short, 'the Act'), at the stage of registration, as not maintainable on the ground that there was no legally enforceable debt and no jural relationship between the complainant and the accused, which has been confirmed by the order dtd. 24/6/2013 passed by the learned V Additional District and Sessions Judge, West Godavari District, at Eluru, in Criminal Revision Petition No. 13 of 2013. The petitioner prays for quashing the orders under challenge and for a direction to the trial Court to proceed with the matter in the above complaint and decide the same on merits.

(2.) The averments in the complaint filed by the petitioner, in brief, are as under : On the request made by accused No. 2, who is the Secretary and Correspondent of accused No. 1-society, the wife of the petitioner invested an amount of Rs.6,00,000.00 in accused No. 1-society and accused No. 2 agreed to give 6% share in profits out of his 25% share. The wife of the complainant and accused No. 2 entered into an agreement to that effect on 25/11/2008, which was reduced into writing. However, when the wife of the complainant demanded for payment of her share of profits, accused No. 2 postponed the same on one pretext or the other and after repeated demands, he issued a cheque bearing No. 880247 dtd. 31/5/2011 drawn on State Bank of India, Kaikaluru Branch, for a sum of Rs.5,00,000.00 in favour of the complainant towards part payment of the amount due to the wife of the complainant. When the complainant presented the said cheque with his banker, it was dishonoured due to insufficient funds and despite issuance of legal notice, the accused failed to repay the cheque amount.

(3.) Learned counsel for the petitioner/complainant would refer to the judgments of the Hon'ble Supreme Court in I.C.D.S. Limited v. Beemna Shabeer reported in (2002) 6 SCC 426 : AIR 2002 SC 3014 and Hiten P. Dalal v. Bratindranath Banerjee . reported in (2001) 6 SCC 16, to argue that once a cheque has been issued by accused No. 2, it should be deemed to have been issued in satisfaction of a legally enforceable debt and issuance of a cheque itself would amount to proof of existence of a legally enforceable debt and, therefore, the trial Court as well as the revisional Court were not justified in holding that the complaint under Sec. 138 of the Act is not maintainable at the stage of registration.