P VAGESWARI Vs. VENKATESWARA TALKIES

JUDGEMENT

(1.) This petition is filed to quash the proceedings in C.C.No.55 of 1994 on the file of the Court of the Judicial First Class Magistrate, Palasa.

(2.) The first respondent herein filed a private complaint alleging that the first petitioner herein to discharge a debt of Rs.38,000/- with the signature of the second petition issued a post-dated cheque to the first respondent. When the first respondent presented the cheque to the Bank, the same was returned saying that the funds were not sufficient to honour the same. The complaint of the first respondent is that the petitioners with a dishonest intention to deceive the first respondent issued the cheque know well that there were no funds in their account and thereby committed an offence under Sec.420 I.P.C.

(3.) The learned counsel for the petitioners contended that when he cheque is dishonoured, the appropriate remedy to the first respondent-complainant is to file a complaint under Sec. 138 of the Negotiable Instruments Act after following the procedure laid down under that provision and the complaint filed under Sec.420 I.P.C. is not maintainable. Relying upon the decision of this Court in M/s. Rachana Flour Mills vs. L.Banagadiya(1) 1985 APLJ(Crl.) 303, he contended that the petitioners cannot be held criminally liable on the dishonour of a cheque. On the other hand, the learned counsel for the first respondent contended that the allegation in the complaint is specific that the petitioners were having dishonest intention to cheat the complainant at the time of issuing the cheque. He further contended that non-filing of a complaint under Sec. 138 of the Negotiable Instruments Act will not disentitle the complainant from filing complaint under Sec.420 I.P.C., and that decision felied upon by learned counsel for the petitioners in Rachan Flour Mill's case is not applicable to the facts of the present case.