K. Ramakrishnan, J.

1. This is an application filed by the accused in C.C. No. 16/2014 on the file of the Judicial First Class Magistrate Court-III, Ernakulam, to quash the proceedings under Section 482 of the Code of Criminal Procedure.

2. It is alleged in the petition that the petitioner is the sole accused in C.C. No. 16/2014 on the file of the Judicial First Class Magistrate Court-III, Ernakulam, which was taken cognizance by the magistrate on the basis of a private complaint filed by the complainant/first respondent herein, alleging offence under Section 138 of the Negotiable Instruments Act.

3. The case of the complainant in the complaint was that there was an amount of Rs.28,00,000/- due and in discharge of that liability, the accused had issued a cheque for Rs.28,00,000/- with date 01.11.2013. Even in the complaint, he had admitted that before the date mentioned in the cheque an amount of Rs. 6,00,000/- was paid and in spite of that the complainant presented the cheque and got it dishonoured and sent a notice claiming for the balance amount and the accused had issued reply notice stating that amount covered by the cheque is not really due and in spite of that a complaint has been filed under Section 138 of the Negotiable Instruments Act.

4. In view of the decision reported in Joseph Sartho v. G. Gopinathan and Another (2008(4) KHC 463), the complaint is not maintainable as there is no endorsement obtained on the cheque for the amount already paid and at the time when the cheque was presented, the amount covered by the cheque is not really due and it cannot be said to be a legally enforceable debt as well. So proceeding with the complaint in view of the dictum laid down in the above decision is nothing but abuse of process of court and there is no possibility of conviction and he prayed for quashing the proceedings.

5. Heard the counsel for the petitioner Sri. Sooraj T. Elenjickal and senior counsel Sri. S. Sreekumar appearing for the first respondent and Smt. Seena Ramakrishnan, Public Prosecutor appearing for the State/2nd respondent.

6. The counsel for the petitioner submitted that admittedly the cheque was issued for Rs.28,00,000/- and before the date mentioned in the cheque, an amount of Rs. 6,00,000/- was paid and it was admitted in the complaint itself. So at the time when the cheque was presented, the amount mentioned in the cheque was not really due. So the complaint under Section 138 of the Negotiable Instrument Act is not maintainable in view of the dictum laid down in Joseph Sartho's case (supra).

7. On the other hand, counsel for the first respondent submitted that he had only claimed for the balance amount and there is a mistake crept in the division bench judgment that the endorsement must be made by the drawee before presenting the cheque which is not correct and the drawer has to make the endorsement and the drawer is not available and in such circumstances, when he made only claim for the balance amount while filing the complaint, it cannot be said that the complaint under Section 138 of the Act is not maintainable. Further whether he had made an attempt to make an endorsement and that was denied by the complainant and without allowing to make endorsement the complainant presented the cheque etc., are matter for evidence and in such circumstances the power under Section 482 cannot be invoked to quash the proceedings.

8. Heard the Public Prosecutor also.

9. It is an admitted fact that there was money transaction between the complainant and the accused and it is also in away admitted that the accused had issued the disputed cheque for Rs. 28,00,000/- drawn on the bank in which he is maintaining account with date 01.11.2013. It is also in away admitted by both the parties and it was admitted by the complainant in the complaint itself that, before the date mentioned in the disputed cheque, namely, 01.11.2013 an amount of Rs. 6,00,000/- was paid by the accused on different dates and it is also an admitted fac