ORDER :

RAJESH RAI K, J.

1.This petition is filed under Section 482 of Cr.P.C. to quash the proceedings in CC No.26526/2023, arising out of PCR No.9017/2023 dated 28.08.2023, filed before the XXII Addl. CMM, Bengaluru (for short 'learned Magistrate) against the petitioner for the offence punishable under Section 138 of N.I.Act and also to set aside the order dated 28.08.2023 in C.C.No.26526/2023 passed by the learned Magistrate.

2. The respondent has filed a private complaint under  Section 200 of Cr.P.C. against the petitioner for the offence under Section 138 of N.I. Act before the learned Magistrate in PCR No.9017/2023.

3. The gist of the averments made in the complaint is that the complainant and the accused were known to each other and, in that capacity, the accused was stated to have availed a loan of Rs.39,71,154/- from the complainant. The sum and substance of the averments in the private complaint is that the respondent executed a sale deed in favour of the petitioner herein in respect of the property bearing Sy.No.249/12, measuring 1 acre and 1 gunta, for a total sale consideration of Rs.1,62,71,154/-. According to the complainant, except for a sum of Rs.59 lakhs, the entire sale consideration was paid by him. Thereafter, the petitioner issued a cheque dated 14.04.2023, drawn on the Bank of Baroda, for a sum of Rs.59,71,154/-. In the meantime, on 08.05.2023, the petitioner transferred a sum of Rs.20 lakhs to the complainant through RTGS. Consequently, according to the complainant, the amount outstanding was reduced to approximately Rs.39,71,000/-. It is further averred that the parties thereafter agreed that the petitioner would pay the said outstanding amount in three equal instalments on or before June 2023. It was also agreed between the parties that, in the event of the petitioner failing to pay the said amount, the complainant would be at liberty to present the cheque, subject to refunding the sum of Rs.20 lakhs already paid by the petitioner to the complainant on 08.05.2023. However, without refunding the said sum of Rs.20 lakhs, the complainant presented the cheque for the entire amount of Rs.59,71,000/-. The said cheque was dishonoured with the endorsement “Payment Stopped”. Thereafter, the complainant caused a legal notice to be issued to the accused. Though the notice was served upon the accused, no reply was issued. Consequently, the complainant proceeded to file the complaint before the learned Magistrate.

4. The learned Magistrate, upon recording the sworn statement of the complainant and considering the material placed on record, took cognizance of the alleged offence against the petitioner vide order dated 28.08.2023. Aggrieved by the same, the petitioner has preferred the present petition.

5. Heard the learned counsel for the respective parties.

6. Apart from urging several other contentions, the learned counsel appearing for the petitioner primarily contended that there was a clear understanding between the petitioner and the respondent that, before presenting the cheque for a sum of Rs.59,71,000/-, the complainant was required to refund the sum of Rs.20 lakhs which had been paid by the petitioner to the complainant through RTGS on 08.05.2023. It is further contended that, as on the date of presentation of the cheque, the petitioner was liable to pay only a sum of Rs.39,71,000/- towards the legally enforceable debt. Despite the same, the complainant presented the cheque for the entire amount of Rs.59,71,000/-, without refunding the sum of Rs.20 lakhs already received from the petitioner. Accordingly, the learned counsel for the petitioner contended that the cheque, having been presented for an amount exceeding the legally enforceable debt due and payable as on the date of its presentation, would not attract the provisions of Section 138 of the Negotiable Instruments Act. To buttress his arguments he placed reliance on the judgment of Dashrathbhai Trikambhai Patel v. Hitesh Mahendrabhai Patel , reported in (