ORDER :

1. Heard Mr.Pawan Kesharwani, learned counsel for the petitioners. Also heard Mr.Shashank Thakur, learned counsel for respondent No.1 and Ms. Madhunisha Singh, learned Deputy Advocate General for respondent No.2/State.

2. The present petition under Section 482 of the CrPC has been filed by the petitioners seeking for quashment of the complaint filed by respondent No.1 and set aside the order dated 10.04.2015 (Annexure P-1) passed by the learned Special Judge, Raigarh in Revision Case No.61/2014 and also set aside the order dated 10.01.2014 registering the Criminal Complaint Case No.588/2014 passed by the Chief Judicial Magistrate, Raigarh (Annexure P-2) and further prayed for quashment of entire criminal proceedings arising out of the Criminal Complaint No.588/2014 against the petitioner.

3. The undisputed facts of the case are that respondent No.1 filed a complaint under Section 138 of the Negotiable Instruments Act, 1881 (for short ‘NI Act’) alleging in it that the petitioner is the Director and the whole sole Manager of M/s United Engineering Company and takes care of the entire business and the same is being run under his control. Respondent No.1/complainant had given a contract for construction of dormitory housing blocks B-1 at Punjipatra site for which work order No. 4513504969, dated 23.12.2010 amounting to Rs.52.51 lacs, which has been subsequently revised by work order No.4513505582 dated 28.03.2011 amounting to Rs.12.74 Crores and the entire construction work of 6 blocks was given and to this effect an agreement was also entered on 28.03.2011. It is alleged in the complaint that the petitioner had to complete the construction of first block by 30.09.2011, but the same was completed after a delay of 3½ months and the second block which was to be completed by 30.12.2011, the same could not be completed and the petitioner left the work. It is further alleged in the complaint that as per the terms of agreement, the amount which was due towards the complainant for that the petitioner on 31.07.2013 given a cheque bearing No.000992/831013011/00007913 amounting to Rs.1,27,43,817/- with an assurance that the same will be honored when deposited in bank. The complainant deposited the same on 31.07.2013 in the State Bank of India, Raigarh and on 01.08.2013 the complainant received the Cheque Return Memo informing that the cheque was dishonoured because of ‘insufficient fund’. Thereafter the complainant issued legal notice through its advocate on 14.08.2013 for payment of the amount mentioned in the cheque within a period of 15 days.

4. Considering the allegations made in the complaint and the statement of the complainant, the learned Chief Judicial Magistrate, Raigarh registered the offence under Section 138 of the NI Act and issued notice to the petitioner vide order dated 10.01.2014. The petitioner being aggrieved by the said order preferred a revision before the learned Special Judge, Raigarh, however, the same was rejected vide order dated 10.04.2015 stating the grounds to be raised at the time of framing of charge. Hence, this CrMP.

5. Mr.Pawan Kesharwani, learned counsel for the petitioner would submit that the learned lower revisional Court failed to consider the fact that there was no debt and the cheque was issued by way of security as per the terms of contract. Learned lower revisional Court committed error in ignoring the settled position of law where if any cheque is issued for security, the same would not come within the purview of Section 138 of the NI Act. He would further submit that learned lower revisional Court failed to consider that the signed undated cheque was issued as a security at the time of entering into a contract. As such, on the date when the cheque was handed over, there was no legally enforceable debt or other liability as the same was only given as a security. He would also submit that institution/continuance of criminal proceedings against the petitioner amounts to abuse of process of court