1. By consent of both sides, the matter has been taken up for final hearing. The petition is filed seeking a direction to call for the records in C.C.No.57 of 2010 on the file of the learned Judicial Magistrate No.II, Poonamallee and quash the same.

2. The respondent has initiated prosecution for an offence under Sec.138 r/w 141 of the Act (hereinafter referred to as Act) before the learned Judicial Magistrate No.II, Poonamallee. It is alleged that the first petitioner is a Private Limited Company represented by the 2nd and 3rd petitioners, who are the Directors. It is stated that the defacto-complainant is a proprietor concern doing the business of civil construction works including the interior work and landscaping. The petitioners engaged the defacto-complainant for sub contract works for civil construction in various factory sites. Under these transactions the petitioners are liable to pay a huge sum of Rs.1,10,99,481/- and they have issued two cheques drawn on Axis Bank Limited for a total sum of Rs.28,88,260/-. The respondent presented the cheque on 28.1.2009 and the same was returned with an endorsement "payment stopped by the drawer". The respondent issued a statutory notice dated 8.9.2009 demanding payment, but there was no reply. Therefore, the respondent initiated by way of private complaint which was taken on file in C.C.No.57 of 2010.

3. Aggrieved by taking cognizance., the petitioners have approached this Court for quashing of the entire proceedings on various grounds. The main ground urged before this court is that there is no legally enforceable debt and the transaction between the parties are purely civil in nature and there is a breach of contract by the defacto-complainant when an work order was entrusted to the defacto-complainant. It is also submitted that when the defacto-complainant has already initiated criminal proceedings for alleged offence under Sec.420 IPC, simultaneous proceedings is double jeopardy .

4. Mr.R. Prabakaran, learned counsel for the petitioner would submit that the defacto-complainant was engaged by the petitioners for a civil construction and the cheques were issued only as a collateral security to the defacto-complainant. The learned counsel submitted that there is a breach of contract by the defacto-complainant for which a notice was issued by the petitioners withholding payment for the cheque. The learned counsel submitted that there is no legally enforceable debt and the entire proceedings is nothing but abuse of process of law.

5. The learned counsel also pointed out that the defacto-complainant has already given a police complaint for the same transaction alleging an offence under Sec.420 IPC.

6. The learned counsel relied on a decision reported in 1999 (2) ALD 669 (Vempati Balaji and others vs D. Vijaya Gopala Reddi and another), wherein the High Court of Andhra Pradhesh has held that

"Thus it is clear that the cheque should be issued by the drawer in discharge of the full or part of the debt or liability and if the said cheque was dishonoured due to insufficient funds, etc., then only Section 138 of the Act all acted, if other conditions are complied with..."

7. The learned counsel also relied on a decision reported in 2002 (II) CTC 443 (Gummadi Industries Ltd vs khushroo F. Engineer), wherein this Court has held as follows:

31. Section 138 of the Act would indicate that the debt or liability towards which the cheque is issued, should be a legally enforceable debt or liability. This would have reference to the nature of the debt or liability and not to the person against whom the debt or liability would be enforced. This is clear by the use of the words "any debt or liability" which would include a cheque drawn by one person towards a legally enforceable debt or liability of another person. The significant omission of the words "of that person" after the words "any debt or liability" would indicate the intention of the Parliament".

8. The learned counsel also relied on