JUDGMENT

1. Heard Mr. G. Choudhury, learned counsel appearing for and on behalf of the petitioner and Mr. VK Chopra, learned counsel for the respondent No.2 and Mr. D. Das, learned Additional Public Prosecutor, Assam for the State/respondent No.1.

2. The petitioner herein is facing a trial under Section 138 of Negotiable Instrument Act (NI Act) pertaining to C.R. Case No.2644C/2007 filed by the respondent No.2 for realization of an amount of Rs.1 Lakh.

3. The respondent No.2 filed a complaint before the court on 02.06.2007 contending that the accused-petitioner being the owner of M/s Babai Tyre Agency who used to purchase the goods from the complainant and in order to liquidate the liabilities payable by said M/s Babai Tyre Agency, the accused-petitioner had issued two nos. of cheques of Rs.50,000/- each to the respondent/complainant dated 15.03.2007 and 14.03.2007 and both the cheques were presented before the Bank which returned dishonoured. Thereafter, the complainant issued Demand Notice on 17.04.2007 for payment of the cheque amount but as the cheque amount was not paid, the complainant filed a case under Section 138 of NI Act. The learned trial court accordingly took the cognizance under said Section of law and issue summon to the accused-petitioner. Initially, the accused appeared before the court and prayed for dispensing his personal appearance by filing a petition under Section 205 of Code of the Criminal Procedure (CrPC)and the learned trial court vide order dated 13.07.2007 directed for appearance of the accused person.

4. At this stage, the accused-petitioner has pressed the present petition filed under Section 482 of CrPC read with Section 401 CrPC for quashing the aforesaid criminal proceedings on the ground that the cheques in question was issued for security purpose vide Annexure-4(a), and as such, he is not at all liable under Section 138 of NI Act as it was not issued against legally enforceable debt within the meaning and ambit of the Act.

5. Learned counsel for the petitioner has pressed the documents that were issued by the respondent/complainant to him to show that the cheque was issued for the purpose of security. Replies of the accused-petitioners to the Legal Notice vide Annexures-G & H have also been pressed into to submit that there is no whisper in the complainant’s petition that cheque was issued to the complainant’s as security and complainant has suppressed the material facts.

6. I have gone through the documents annexed.

7. Learned counsel for the respondent No.2 has rebutted all the contentions of the petitioner’s side and has pressed into their affidavit-in-opposition that has been filed in this case to submit that the petitioner herein had already caused long delay towards disposal of the matter since the filing of the case in the year, 2007 and subsequently, while the trial court directed for his appearance, he suddenly preferred the present petition in 2017 only to delay the process.

8. However, referring to the various documents submitted by the learned counsel for the petitioner as regards plea that cheque was issued for security purpose and about suppression of facts, it is contended by the learned counsel for the respondent No.2 that said issue cannot be termed as suppression of fact and that the complaint/respondent had narrated all the facts that is necessary to draw the presumption under Section 138 of NI Act. As regards the plea of issuance of cheque as security, it has been replied in para-7 of the affidavit-in-opposition that cheques in question were issued on condition that in the event of failure of the petitioner to make payment of the dues, the complaint have the option to encash the cheques amount by presenting the same to Bank and accordingly, as the petitioner failed to make payment of dues, the complaint deposited the aforesaid cheques for encashment but the same was dishonoured and returned without payment by the Bank. Thereafter, only the respondent No.2 issued a Demand Notice