K MANIKYAM Vs. P PARVATHI

JUDGEMENT

(1.) The petitioner is accused in CC No.431 of 2002 on the file of the Court of VI Metropolitan Magistrate, Hyderabad. Learned Magistrate took cognizance of the case under Section 138 of the Negotiable Instruments Act, 1881 (for short, the Act), as amended by Bank's Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act, 1988. In this petition, the petitioner seeks quashing of the said calendar case on the ground that no offence under Section 138 of the Act is disclosed in the complaint filed by first respondent on the file of the Court of VI Metropolitan Magistrate where CC No.431 of 2002 is pending adjudication.

(2.) The fact of the matter is this. The husband of first respondent and accused are friends. The accused requested husband of first respondent by name, Janardhana Rao to join as a member of chit in M/s. Vishishta Finance and Chit Fund Co. Ltd., Warangal. Janardhana Rao joined in Chit No.VFCIP-IA/31 in October 1994 of the value of Rs.2,00,000/- (Rupees two lakhs only) for a period of fifty months on monthly subscription of Rs.4,000/- per month. He p.iid monthly subscription without committing any default and never bid in the auction in the prize chit. After completion of the chit period, Janardhan Rao issued a cheque on behalf of his wife and sons Bearing No.554230 dated 4-4-2002 towards part payment amount of Rs. 1,00,000/-. The cheque was drawn on State Bank of India, Hanmakonda Branch. The complainant presented the cheque to the bankers but the same was returned on 9-4-2002 for want of funds. Subsequently, on a request made by accused, the cheque was presented again on 30-4-2002 to Bank of Baroda, Tilaknagar, Hyderabad, On 6-5-2002 the cheque was again returned with an endorsement "insufficient funds". The same was received by the complainant on 10-5-2002. In spite of issue of notice under Section 138 of the Act, the accused did not deposit the funds, but issued a reply dated 24-5-2002 denying the liability. Hence, the criminal case was filed. Learned VI Metropolitan Magistrate, Hyderabad, took cognizance of the case and issued summons to the petitioner/accused, aggrieved by which present petition under Section 482 of Code of Criminal Procedure, 1973 is filed.

(3.) Learned Counsel for the petitioner, Sri Vinod Kumar Dcshpande, contends that the cheque in realization of which offence is said to have been alleged is time barred cheque and therefore Section 138 of the Act is not attracted. Secondly, he would urge that cheque in question was allegedly on behalf of one Vijay Balarama Raju who promised to deposit the amount of Rs. 1,00,000 r.nd therefore the liability cannot be fastened on the petitioner. Lastly he would urge that there was no legally enforceable debt in discharge of which the cheque was giver and therefore the criminal case filed against petitioner is gross abuse of process of Court.