H.N. Sarma, J.

1. Being aggrieved by initiation of the impugned proceeding registered as C.R. Case No. 3/09 under Section 138 of the N.I. Act by the learned SDJM (M), Biswanath Chariali, against the petitioner on the basis of a complaint lodged by the respondent-complainant, the present application for quashing of the said proceeding has been filed by the petitioner in exercise of the jurisdiction under Section 482, Cr.P.C.

Heard Dr. B. Ahmed, learned Counsel appearing for the petitioner and Mr. K.R. Surana, learned Counsel appearing for the respondent-complainant.

2. The complainant filed the aforesaid C.R. Case No. 03/09 before the learned Trial Court alleging dishonour of two cheques being Cheque Nos. 0638623 and 0638624 both dated 12.9.2008 drawn in favour of the complainant for a total amount of Rs. 9 lakh and non-payment of the amount even after issuance of notice to the complainant thereby committing an offence punishable under Section138 of the N.I. Act. Relevant extracts of the complaint petition having relevance to the issue are quoted hereinbelow:

Para 3: That in addition to the other obligations, the accused also issued total 5 (five) Nos. of Cheques being Nos. 0638623, 0638624, 0638625, 638626 and 0638627 drawn on Ballia Kshetriya Gramin Bank, Ballia Branch for the total sum of Rs. 22,50,000/- (Rupees twenty-two lakh fifty thousand) only in favour of the complainant as a security for investment of Rs. 15,00,000/- by the complainant in business of the accused person as embodied in Clause No. 5 of the agreement. The complainant was also authorized by the accused person to present the aforesaid cheques vide Clause No. 6 of the agreement for collection of the respective amounts thereof in the event of failure on the part of the accused person in payment of the monthly instalments of Rs. 1,02,500/- and also in repayment of invested money amounting to Rs. 15,00,000/- as stipulated in the para Nos. 2 and 3 thereof.

(4) That although the terms and conditions of the agreement dated 13.12.2006 were made effective from the date of execution of the same, it was mutually and verbally agreed by both the parties to give effect the conditions of payment of interest and share of profit of the business to the complainant only from 1.1.2007.

But thereafter also as the accused person failed to pay the monthly instalments of interest and share of profit payable to the complainant regularly, the complainant sent a registered notice of demand dated 16.5.2008 through his Advocate Mr. D.K. Borah to the accused person claiming Rs. 12,37,025/- (Rupees twelve lakh thirty-seven thousand twenty-five) only as the arrear amount towards the interest and share of profit of the business calculated from 1.1.2007 to 30.4.2008, excluding the amount of Rs. 4,02,975/- paid by him.

Be it mentioned that thereafter Sri Padam Kumar and Sri Sanjay Kumar Gupta, the younger brother and brother-in-law of the accused person respectively visited the residence of the complainant at Biswanath Chariali and requested him to allow time at least for 2 months to repay the invested money amounting to Rs. 15,00,000/- along with the total arrear amount of interest and share of profit payable to the complainant as per terms and conditions of para Nos. 2 and 3 of the agreement dated 13.12.2008. The brother of the accused person also received and took with him the photocopy of the demand notice dated 16.5.2008.

5. That in spite of repeated request and demand made by the complainant the accused had failed to pay the due amount as aforestated, the complainant at the advice of the accused person ultimately presented 2 (two) Cheques out of 5 (five) numbers of cheques issued by the accused person, being Nos. 0638623 and 0638624 both are dated 12.9.2008, for the total amount of Rs. 9,00,000/- (each cheque for an amount of Rs. 4,50,000/- drawn on Ballia Kshetriya Gramin Bank, Ballia Branch for collection of the cheques amount through his Bankers State Bank of India, Biswanath Charia