IMPORTANT POINT
Absence of any averment in complaint filed u/s 138 of Negotiable Instruments Act that cheque was issued in discharge of any legally enforceable debt or other liability renders complaint not maintainable.

T. Ranga Rao, J-This petition is filed under Section 482 Cr. P.C. to quash the proceedings in C.C. No. 275 of 1996 on the file of the Judicial Magistrate of First Class. Banswada, Nizamabad District

2. The first respondent filed a complaint against the petitioners for an offence punishable under Section 138 of the Negottable Instruments Act (for short the Act) read with Section 142 of the Act alleging that the petitioners 1 to 3 and others established a Marriage Trust, styled as Kanyaka Parameswari Charitable Marriage Trust, registered as 2195 and maintained the office at Market Cross Roads, Siddipet of Medak District and approached the complainant and requested her to become member of the said Trust, that believing their version she joined as a member by paying some amount as directed by them, that then the petitioners issued a cheque for Rs. 30.000/- drawn on State Bank of India, Chikkadpalli Branch dated 30-6-1996, that it was presented and returned unpaid with an endorsement 'insufficient funds' on 17-7-1996, that the complainant got issued a notice on 27-7-1996 requesting to pay the amount, that the petitioners failed to pay the amount and that, therefore, the petitioners deceived the complainant.

3. Now the petitioners filed the petition requesting to quash the proceedings.

The learned Counsel for the petitioners submitted that from a reading of the averments of the complaint it is clear that there is no allegation that there is a legally enforceable debt or liability and for discharge of the same the cheque was issued that in the absence of any such allegation the provision of Section 138 of the Act does not get attracted. It is further submitted that if the cheque is given as a gift or charity and if it is dishonoured it does not amount to an offence under Section 138 of the Act, and requested to quash the proceedings.

4. The learned Counsel for the respondent submitted that the petitioner met the complainant and requested to become a member of the said Marriage Trust and then she believed their version and became a member and completed all the formalities by paying the amount as directed and the petitioners herein issued a cheque on 30-6-1996 for Rs. 30,000/- and the same was dishonoured and hence they are liable for an offence under Section 138 of the Act.

5. There is no dispute wich regard to the issuance of cheque by the petitioners-which was presented Gmd the same was dishonoured with an endorsement 'insufficient funds'. The only point that arises for consideration is whether the complaint is maintainable in the absence of any allegation that the cheque was issued in discharge of whole or part of the legally enforceable debt or liability. It is useful to refer to Section 138 of the Act which reads as under:

"Where any cheque drawn by a person on an account maintained by him with a bank 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 provision of this Act, be punished with imprisonment for a term which may extend to one year or with fine which may extend to twice the amount of the cheque."

Thus it is clear that the cheque should be issued by the drawer in discharge of the full or part of the debt or liabtlity and if the said cheque was dishonoured due to insufficient funds etc. then only Section 138 of the Act gets attracted if other conditions are complied with. On a perusal of the averments of the complaint there is no averment that the cheque was issued by the petitioners in discharge of any legally enforceable debt or other liability. I am fortified in my conclusion by