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2014 DIGILAW 506 (AP)

Annam Associates v. State of A. P.

2014-04-02

R.KANTHA RAO

body2014
ORDER R. Kantha Rao, J. 1. Heard the learned counsel appearing for the petitioners, the learned counsel appearing for respondent No. 2 and the learned Additional Public Prosecutor representing the State. This Criminal Petition is filed under Section 482 of Cr.P.C, to quash the proceedings in C.C. No.502 of 2009 on the file of the II-Additional Judicial First Class Magistrate, Bhimavaram, West Godavari District. 2. The petitioners are the accused in the aforesaid case filed under Sections 138 and 141 of Negotiable Instruments Act. It is alleged in the complaint that the petitioners borrowed personal loan of Rs. 30,00,000/- (Rupees thirty lakhs only) from the second respondent company, agreeing to pay the same in 36 monthly installments at the rate of Rs. 1,20,210/- (Rupees one lakh, twenty thousand, two hundred and ten only) commencing from September, 2006. The petitioners paid only seven installments and thereafter they committed default. Subsequently, on demand, the petitioners issued cheques for repayment of the debt and they were dishonoured. The Complainant after issuing notice/filed the aforesaid criminal case under Sections 138 and 141 of the Negotiable Instruments Act. 3. It is contended on behalf of the petitioners that there is an arbitration clause in the agreement between the parties and in fact, the complainant initiated arbitration proceedings, wherein an ex parte award was passed, which is now the subject matter of challenge in an appeal filed by the petitioners. 4. It is further contended that a suit for recovery of an amount of Rs. 6,01,060/- (Rupees six lakhs, one thousand and sixty only) was filed by the complainant in the Court of Senior Civil Judge, Bhimavaram, and subsequently, the said suit was withdrawn. 5. There is no force in the contention raised by the learned counsel appearing for the petitioners that the complainant cannot resort to criminal proceedings in respect of the same transaction, filing a civil suit or initiating arbitration proceedings is no bar for filing a complaint under Section 138 of the Negotiable Instruments Act. 6. It is also contended by the learned counsel appearing for the petitioners that in fact the entire amount was paid and thereafter, the complaint is filed under Section 138 of Negotiable Instructions Act to harass the petitioners: Therefore, according to the learned counsel, there is no legally enforceable debt in respect of which, the cheques have been allegedly issued. 7. It is also contended by the learned counsel appearing for the petitioners that in fact the entire amount was paid and thereafter, the complaint is filed under Section 138 of Negotiable Instructions Act to harass the petitioners: Therefore, according to the learned counsel, there is no legally enforceable debt in respect of which, the cheques have been allegedly issued. 7. Whether there is a legally enforceable debt or not is a question of fact, such issue cannot be decided by this Court in an application filed under Section 482 of Cr.P.C. The petitioners can raise the question as to the existence of a legally enforceable debt in the trial Court, but not in the present Criminal Petition. For the foregoing reasons, the Criminal Petition is dismissed. The Miscellaneous Petitions pending if any shall stand closed.