The main legal point established in the judgment is that the complainant must disclose the nature of the liability due and that the same is legally enforceable under Section 138 of the Negotiable Instruments Act. Disputed questions of fact should be left for the trial court to decide.

S. RAVINDRA BHAT, J.

( 1 ) THE present petition under Section 482 Cr. P. C. seeks quashing of criminal proceedings pursuant to a complaint preferred by the second respondent (hereinafter referred to as "the complainant" ). The complainant had alleged commission of offences under Section 138, Negotiable Instruments Act ("the Act")by the Petitioner.

( 2 ) THE allegations in the complaint were that the petitioner accused had issued cheques to him, towards valuable consideration and in part discharge of loan amounts secured by the petitioner from him. It was claimed that when the instruments were presented, the payee's bank returned them with the remarks "accounts Closed". The complainant allegedly issued notice calling upon the petitioner- accused to make good the amounts in terms of the cheques within the stipulated notice period. The demands were not complied with; in these circumstances the complaints were preferred.

( 3 ) MR. R. K. Kapoor, learned counsel contends that the petitioner did not owe any amount to the respondent-complainant. The complainant, according to the petitioner's version was his Clerk/accountant and privy to his business. The petitioner, it is contended, was ailing at that time, due to Diabetic nephropathy, leading to renal failure for 15 years and had to frequently undergo dialysis. He heavily depended upon the complainant, and his son later joined the business when the respondent was already working for him. It is contended that during the interregnum several blank, signed cheques were kept for routine use and in safe custody; the complainant had access to them. It is claimed that at the relevant time without the knowledge or authorization of the petitioner, the complainant stole the cheques and sought to present them to the banker after filling them with amounts.

( 4 ) MR. Kapoor contended that the petitioner had intimated the concerned police authorities at the relevant time when he became aware about the conversion of cheques by the complainant. He placed reliance upon the complaints made in that regard, to local police authorities at Narnaul in Haryana in April, 2004 and subsequently in September, 2005.

( 5 ) IT was averred and contended that the complaint proceedings pending before the court are in abuse of the judicial process as the cheques were forged and not supported by any consideration. It was submitted that order to invoke the remedy of a special procedure, the complaint has to clearly aver and disclose that the accused/drawer had issued the cheque or instrument, in discharge of a legally recoverable debt. Counsel contended that the circumstances of this case show that no legally recoverable debt or liability of the petitioner existed and, therefore, the proceedings were liable to be quashed. It was urged that the law required strict compliance of the provisions of Section 138, which mandates that the complainant should disclose the nature of the liability due and that the same is legally enforceable.

( 6 ) COUNSEL for the second respondent-complainant opposed the petition and urged that at the stage of issuance of summoning order, the Court has to be merely satisfied that the ingredients under Section 138 were made out; this has to be on the basis of the allegations in the complaint, the documents presented and the pre-summoning evidence. The Court, in this case, upon being satisfied that all the necessary averments and materials existed on record, issued the summoning order. There is no infirmity with it.

( 7 ) LEARNED counsel contended that the allegations of the Petitioner regarding circumstances relatable to issuance of cheques cannot be gone into by the Court at this stage and in any case by this Court under Section 482 as they are disputed questions of fact. Whatever be the defences of the petitioner, they are open to him in the triable.

( 8 ) COUNSEL contended that there are sufficient averments in the complaint, indicative that the cheques were drawn to discharge a legal liab