IMPORTANT POINT
Factual aspects of case can be decided only during trial.

P.S. Narayana, J.— While admitting the matter on 14.12.2009, this Court ordered notice in Criminal M.P. No.10219 of 2009 and directed that the matter be listed after eight weeks.

2. Notice had been served on the first respondent/complainant and Sri C. Praveen Kumar, the learned counsel entered the appearance on behalf of the first respondent/complainant.

3. Heard Sri K. Subrahmanyam, the learned counsel representing the petitioner/accused, Sri C. Praveen Kumar, representing the first respondent/complainant and the learned Additional Public Prosecutor representing the second respondent-State.

4. This criminal petition is filed under Section 482 of the Code of Criminal Procedure (hereinafter in short referred to as “the Code” for the purpose of convenience) praying to quash all the proceedings in CC No. 19 of 2009 on the file of the Judicial First Class Magistrate, V. Madugula, Visakhapatnam District.

5. Sri K. Subrahmanyam, the learned counsel representing the petitioner/accused would maintain that taking cognizance of an offence under Section 138 of the Negotiable Instruments Act, in the facts and circumstances of the present case, cannot be sustained. The learned counsel pointed out that virtually, for the self-same relief by two suits had been filed and the said suits are pending disposal. In the light of the same, the proceedings under challenge being abuse of process of law are liable to be quashed. The learned counsel also strongly relied on the decisions of the Apex Curt in Inder Mohan Goswami & Anr. v. State of Uttaranchal & Ors.1

6. The learned Additional Public Prosecutor representing the second respondent State would maintain that as can be seen from the nature of the allegations made in the complaint and also the grounds raised in the present criminal petition, several factual controversies are involved and these factual controversies cannot be gone into in a criminal petition under Section 482 of the Code.

7. Sri C. Praveen Kumar, the learned counsel representing the first respondent/complainant had taken this Court through the averments made in the complaint and would maintain that the grounds, which are being taken are by way of defence and hence, these aspects cannot be gone into at this stage and as such, the criminal petition is liable to be dismissed.

8. Heard the learned counsel.

9. Perused the averments made in the complaint, also the other material placed before this Court and the specific grounds raised in the present criminal petition filed under Section 482 of the Code.

10. It is stated that the petitioner accused had borrowed an amount of Rs. 7,00,000 from the first respondent/ complainant on 14.7.2008 agreeing to repay the same with an interest at 18% p.a. payable every month by the even date and further agreed to discharge the said debt within 3 months, and with these and other conditions the accused executed a simple mortgage deed in favour of the first respondent/complainant on the same day and registered it; that subsequently upon several demands, the accused has given a cheque enclosed herewith bearing No.786977 dated 26.6.2009 draw on Ing. Vysya Bank, Anakapalli Branch for an amount of Rs.8,30,000 to the respondent/complainant towards the discharge of the above said mortgage debt; that thereupon, the respondent-complainant herein presented the said cheque for collection to his Banker, Indian Bank, at V. Madugula, on 9.7.2009 the cheque was returned to the respondent/complainant herein by his banker stating that the amounts could not be released due to the insufficiency of funds in the account of the petitioner/accused, thereupon the respondent/complainant gave a statutory notice to the petitioner/accused on 11.7.2009 and the same was received by him on 17.7.2009. The petitioner/accused upon receipt of the said notice has failed to pay the said amount of Rs. 8,30,000 to the respondent/ complainant on the other hand, he got issued a reply the said reply notice are hereby specifically denied a