MAGANTI GANTA AVADHANI Vs. KOPURI SREENIVASA RAO

JUDGEMENT

(1.) This criminal petition has been filed by the accused under Section 482 of Cr.P.C. to quash the proceedings in C.C. No. 157 of 2004 on the file of the Additional Judicial Magistrate of First Class, Gudivada, Krishna District.

(2.) A private complaint was filed by the first respondent/complainant for the offence punishable under Section 138 of the Negotiable Instruments Act (for short 'the Act'). It is alleged in the complaint that the accused borrowed an amount of Rs.4,20,000.00 from the complainant on 17/3/2000 for the purpose of business and discharge of sundry debts. The accused executed three different promissory notes agreeing to pay the said amount with interest at the rate of 24% per annum. The complainant made several demands, but the accused failed to repay the entire amount and ultimately issued a cheque on 14/8/2003 for an amount of Rs.4,32,000.00 towards part payment of the debt due under the promissory notes. On 16/8/2003 the accused paid an amount of Rs.5,000.00 towards part payments of the said three promissory notes and the same were endorsed on the promissory notes separately. The complainant presented the cheque issued by the accused on 9/1/2004 for collection. The cheque was bounced on the ground that there are no funds in the account. He got issued a notice through registered post and under certificate of posting on 28/1/2004 informing the accused about dishonour of the cheque and demanded to repay the cheque amount within 15 days from the date of receipt of the notice. The accused received the said notice and gave reply with false allegations, but failed to repay the amount. Therefore, he committed the offence under Section 138 of the Act.

(3.) After completing the examination of PW-1 complainant, the petitioner filed the present criminal petition contending that the cheque is materially altered and it was endorsed on the cheque'sans recourse' i.e., without recourse and the cheque was obtained by the complainant in due course with a specific understanding that the complainant will not have the recourse. Therefore, the complainant is not entitled to file a complaint and the trial Court ought to have rejected the same. It is further contended that as the cheque itself speaks that the payee will not have recourse to file the complaint, taking cognizance of the complaint is barred. Therefore, the proceedings against the accused in C.C. No. 157 of 2004 are liable to be quashed.