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2001 DIGILAW 447 (KAR)

SHASHI PRAKASH v. B. KRISHNA MURTHY

2001-06-14

MOHAMED ANWAR

body2001
MOHAMED ANWAR, J. ( 1 ) AFTER hearing the arguments of the learned Counsel for petitioner in the morning session, this matter was passed over to be heard in the afternoon session, since the learned Counsel for respondent was not present. Even in the afternoon session, he has remained absent and, therefore, the Court could not have had the benefit of his argument. ( 2 ) ON the complaint under Section 200 Cr. P. C of respondent (hereinafter referred to as 'the complainant') the petitioner (hereinafter referred to as 'the accused') is being prosecuted in C. C. No. 30041/1999 in the Court of XIII Addl. C. M. M. , Bangalore, for the offence under Section 138 of the Negotiable Instruments Act ("the N. I Act" for short ). By this petition under Section 482 Cr. P. C, the accused prays that the criminal proceedings against him in the said C. C. No. 30041/1999 may be quashed since it is legally unsustainable in law, in that, the allegations made by the complainant in his said complaint do not prima facie constitute an offence under Section 138 of the N.. Act. ( 3 ) ON going through the contents of the said complaint and the legal notices exchanged between the parties, I find sufficient legal force in the contention of the accused which was reiterated by his learned Counsel in his address to the Court. It is made crystal clear by the complainant in his complaint and the legal notice dated 20. 8. 1998 got issued through his advocate to the accused, as also from the sworn statement of complaint recorded by the learned Magistrate, that the cheque in question dated 1. 4. 1998 for Rs. 11,00,000/- was stated to have been issued by the accused in favour of complainant at the latter's request to advance him the said amount as loan. In other words, it is the complainant's case that himself and the accused were very close friends and that when complainant requested the accused to advance him the loan of Rs. 11,00,000/-, the latter had issued the said cheque to him towards advancements of the said loan. The further case of the complainant is that when that cheque was presented to the drawer's bank for encashment, the same was bounced with bank's endorsement "insufficient funds". Hence, the complaint under section 138 of the N.. Act. 11,00,000/-, the latter had issued the said cheque to him towards advancements of the said loan. The further case of the complainant is that when that cheque was presented to the drawer's bank for encashment, the same was bounced with bank's endorsement "insufficient funds". Hence, the complaint under section 138 of the N.. Act. ( 4 ) ADMITTEDLY, the accused was not owing any debt to the complainant and that the said cheque was not issued to him by the former towards discharge of the latter's liability to pay the said debt or towards discharge of any other liability for that matter. In order to attract the applicability of section 138 of the N.. Act, one of its essential ingredients is that the cheque by the accused must be shown to have been issued "for the discharge, in whole or in part, of any debt or other liability" towards the complainant. This essential ingredient is conspicuously absent in the complainant's case. Therefore, the complaint alleging commission of the offence under Section 138 of the N.. Act made by him against accused in the Court below is not maintainable in law, and as such the prosecution of accused for the alleged offence is liable to be quashed. Hence, for the reasons aforestated, the petition is allowed. The criminal proceeding in C. C. No. 30041/1999 pending on the file of the Court below against petitioner-accused is quashed.