IMPORTANT POINT
Consideration emanating from a void contract cannot be called as a legally recoverable debt.

ORDER

K.N. Phaneendra, J.—Heard the learned counsel for the petitioner as well as the learned counsel for the respondent. Perused the records.

2. The petitioner has sought for quashing of the entire proceedings in CC No.22036/2009 registered against her for the offence punishable under Section 138 of the Negotiable Instruments Act [hereinafter referred to ‘Act’ for short].

3. The sole ground that has been taken before this court seeking quashing of the above said proceedings is that - a prima facie meaningful reading and understanding of the complaint itself filed by the respondent – complainant before the Trial Court reveals that, there is no allegation in the complaint that there exists a legally recoverable debt from the accused. In the absence of such existence of the legally recoverable debt, Section 138 of the Act itself is not attracted.

4. In this regard, the learned counsel for the petitioner has drawn my attention to the entire paragraphs in the complaint averments to demonstrate that there was no legally recoverable debt even according to the complaint averments. When such being the case, there cannot be any presumption under Negotiable Instruments Act particularly u/s.139 of the Act. When presumption u/s.139 of Negotiable Instruments Act cannot be raised in favour of the complainant and if it is not shown exfacie on the face of the complaint averments, that there exists any legally recoverable debt, then ingredients of Section 138 of the Negotiable Instruments Act are not attracted. Therefore, on that ground, the complaint itself is liable to be quashed.

5. Per contra, learned counsel for the respondent submitted that, on meaningful reading and understanding of the complaint averments, there creates some doubt whether the accused has only acted as a commission agent for the purpose of getting job for the son of the complainant and in such an eventuality, presumption u/s.139 of the Act has to be raised and it is a matter of fact whether there exists any legally recoverable debt or not. Therefore, on that ground, the proceedings cannot be quashed. The parties have to establish their case and the defence taken by the accused during the course of trial. Therefore, that ground is not tenable and the proceedings cannot be quashed.

6. On the above said rival contentions of the learned counsels, it is just and necessary for this court to ascertain whether the ingredients of Section 138 of the Act are available to the complainant in order to continue the prosecution against the accused. Section 138 of the Act says that–

“Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for [a term which may be extended to two years], or with fine which may extend to twice the amount of the cheque, or with both.”

The rest of the provision may not be necessary so far as this case is concerned.

7. In this context, Section 139 of the Negotiable Instruments Act also comes into play. Section 139 of the Act says that–

“139. Presumption in favour of holder –It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability.”

Therefore, here, the debt or other liability has to be understood as existence of legally recoverable debt or liability so far as the accused is concerned.

8. In this context, the learned counsel for the petit