IMPORTANT POINT
Complaint u/s 138 N.I. Act, could not be quashed on ground that number of the cheque was wrongly given in the demand notice.

P.S. Narayana, J.—Heard Mr. Ramakrishna, the learned counsel representing the petitioners/accused, Mr. Akshat Sanghi, Counsel representing 1st respondent and the learned Additional Public Prosecutor representing 2nd respondent.

2. Mr. Ramakrishna, the learned Counsel representing the petitioner would maintain that when the cheque number was wrongly mentioned inasmuch as there was no valid notice under Section 138 of Negotiable Instruments Act, the very complaint is not maintainable and hence the proceedings are liable to be quashed.

3. The learned Additional Public Prosecutor however would maintain that the two grounds which had been raised—the wrong number relating to the cheque in the notice and also to the effect that the blank cheque was issued by way of security, these being factual controversies, normally on such grounds, the Criminal Petition under Section 482, Criminal Procedure Code (in short hereinafter referred to as “Code” for the purpose of convenience) cannot be allowed.

4. Mr. Akshat Sanghi representing Sri. Sharad Sanghi had placed strong reliance on Kavuri Suwarna Bala Sundaram v. Karnati Poorna Chandra Rao1 and would maintain that in the light of the said decision, this aspect also may have to be gone into at the appropriate stage.

5. It is the case of the petitioner/accuses that C.C. No. 436/2006 on the file of 1st Additional Metropolitan Magistrate, City Criminal Courts at Hyderabad filed by the 1st respondent/Complainant is liable to be quashed as there is no statutory notice issued by the 1st respondent under Section 138 of Negotiable Instruments Act to the petitioners for maintaining the complaint. In the absence of statutory notice, the C.C. No 463/2006 on the file of 1st Additionana1 Metropolitan Magistrate, City Criminal Courts, Hyderabad to be quashed.

6. Further it is stated that the notice under Section 138 of the Negotiable Instruments Act issued in respect of Cheque No.536537 dated 3.3.2004 drawn on State Bank of Hyderabad, Huzurnagar Branch, Nalgonda for Rs. 16,00,000/- but the complaint was filed basing on cheque bearing No.586537 dated 3.3.2004 drawn on State Bank of Hyderabad, Huzurnagar Branch, Nalgonda for Rs. 16,00,000/-and therefore the complaint is not maintainable and the same is liable to be quashed. The proceedings in C.C. No. 463/2006 aforesaid are sheer abuse of process of Court and the same are liable to be quashed.

7. It is further stated that the petitioners 2 to 4 in the petition had already retired from the partnership firm and they are no longer partners of the 1st petitioner. Even assuming without conceding that the petitioners 2 to 4 are still partners, there is no averment in the complaint that at the time of commission of the offence by of firm, the petitioners 2 to 4 are responsible to the firm for the conduct of business of the firm. In the absence of any such averment, the complaint is liable to be quashed. Further it is stated that the cheque No.536537 was a blank cheque issued as security to the 1st respondent during the year 1989-90 and the same was filled up by the 1st respondent with a mala fide intention by putting the date and amount and presented the same during the year 2004. There is material alteration in respect of the cheque and further the cheque was filled up without the consent of the 2nd petitioner and presented without any authority for realization. The complaint is liable to be quashed as there is no legally enforceable debt.

8. The aspect of retirement and the aspect of the blank cheque being issued as security, these are factual issues which cannot be gone into at this stage.

9. The only question which may have to be considered is whether this mistake specified in the notice relating to the cheque number would totally vitiate of proceedings and whether such proceedings are liable to be quashed under Section 482 of the Code. The learned Counsel representing the 1st respondent/complainant placed strong reliance on the decision referred supra where