Second application putting forth legal plea when factual plea is projected in first application is not sustainable.

(Petition under Section 482 of Criminal Procedure Code praying for issuance of a direction to call for the records relating to C.C.No.1125 of 2003 on the file of the learned Judicial Magistrate, Tambaram and quash the same.)

The petition is filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in C.C.No.1125 of 2003 on the file of the learned Judicial Magistrate, Tambaram.

2. The petitioner is the accused in a case under Section 138 of the Negotiable Instruments Act. He filed a petition on an earlier occasion under Section 482 of the Code of Criminal Procedure and the same was dismissed on the ground that the case was already taken up for trial by the learned Judicial Magistrate, Tambaram. The petitioner was given liberty to raise all the factual contentions before the learned Judicial Magistrate, Tambaram during the course of trial.

3. Now this petition is filed for quashing the proceedings on the ground that the complaint does not whisper about the non payment of the amount demanded by the complainant from the accused through his statutory notice.

4. Learned counsel for the petitioner would submit that the second petition under Section 482 of the Code of Criminal Procedure raising the legal plea is maintainable after the first petition under Section 482 of the Code of Criminal Procedure filed on factual foundation was dismissed.

5. It is his further submission that as the complaint lacks required pleadings as contemplated under proviso (c) to Section 138 of the Negotiable Instruments Act, the criminal proceedings as against the petitioner will have to be quashed.

6. In the authority in Superintendent And Remembrancer Of Legal Affairs, W.B. Vs. Mohan Singh And Others (AIR 1975 SC 1002) the Hon'ble Supreme Court has held as follows:-

"Section 561-A preserves the inherent power of the High Court to make such orders as it deems fit to prevent abuse of the process of the Court or to secure the ends of justice and the High Court must, therefore, exercise its inherent powers having regard to the situation prevailing at the particular point of time when its inherent jurisdiction is sought to be invoked. The High Court was in the circumstances entitled to entertain the subsequent application of Respondents Nos.1 and 2 and consider whether on the facts and circumstances then obtaining the continuance of the proceeding against the respondents constituted an abuse of the process of the Court or its quashing was necessary to secure the ends of justice. The facts and circumstances obtaining at the time of the subsequent application of respondents Nos.1 and 2 were clearly different from what they were at the time of the earlier application of the first respondent because, despite the rejection of the earlier application of the first respondent, the prosecution had failed to make any progress in the criminal case even though it was filed as far back as 1965 and the criminal case rested where it was for a period of over one and a half years. It was for this reason that, despite the earlier order dated 12th December, 1968, the High Court proceeded to consider the subsequent application of respondents Nos.1 and 2 for the purpose of deciding whether it should exercise its inherent jurisdiction under Section 561A. This the High Court was perfectly entitled to do and we do not see any jurisdictional infirmity in the order of the High Court. Even on the merits, we find that the order of the High Court was justified as no prima facie case appears to have been made out against respondents Nos.1 and 2."

7. In the aforesaid case, the accused invoked the inherent jurisdiction of the High Court to quash the criminal proceedings at the first instance and the High Court rejected it on the ground that the evidence was yet to be led and that it was not desirable to interfere with the proceedings at that stage. But it is seen that thereafter in the said case, the criminal proceedings dragged on for a period of about 1-1/2 yea