The alleged cheques were obtained as security at the time of borrowing and were not issued for any legally enforceable debt, leading to the quashing of the criminal proceedings.

1. This quash petition is filed to quash the criminal proceedings in C.c.No.88 of 2007 on the file of the Judicial Magistrate, Kodaikanal having been taken cognizance for the offences under Section 138 of Negotiable Instrument Act against the petitioner/Accused.

2. The case of the respondent/complainant is that the petitioner is known to him. The petitioner and his mother borrowed a sum of Rs.40,00,000/- from the respondent's wife on 02.04.2004 on execution of registered mortgage deed of their properties. Again, for the urgent need of the petitioner herein, he borrowed a sum of Rs.7,00,000/-on 02.05.2007 and at the time of borrowal of the loan, the petitioner issued post dated cheque bearing No.0544530 dated 16.05.2007 drawn on State Bank of India, Trichirappalli for the said sum. When the cheque was presented for collection on 21.05.2007 through the State Bank of India, Kodaikanal, it was dishonoured and returned on 06.06.2007 for the reason ‘Insufficient Funds’. Thereafter, the respondent issued statutory notice dated 13.06.2007 and the same was duly received by the petitioner on 16.06.2007. The petitioner also replied by the reply notice dated 26.06.2006 and after receipt of the same, the respondent also issued rejoinder dated 29.06.2007 to the petitioner. Thereafter, the petitioner did not pay the cheque amount and hence, the complaint. The learned Judicial Magistrate, Kodaikanal had taken cognizance for the offences under Section 138 of Negotioable Instrument Act against the petitioner and it is pending for trial.

3. The learned counsel for the petitioner/accused would submit that according to the case of the respondent, the petitioner and his mother borrowed a sum of Rs.40,00,000/- on 02.04.2004 on execution of a mortgage deed. Thereafter, without repaying the same, on 02.05.2007, again, the petitioner borrowed a sum of Rs.7,00,000/-. Therefore, when the first loan itself is pending, the further loan as alleged by the respondent herein it not at all possible and it is unbelievable.

4. The learned counsel for the petitioner would further submit that the petitioner and his mother jointly issued notice dated 22.11.2005 to the respondent and his wife stating that in June 2003, the petitioner and his mother borrowed a sum of Rs.6,00,000/-, in which, Rs.2,00,000/- has been deducted as interest and remaining amount only lend by the respondent herein. At the time of borrowal of loan, the respondent obtained signed blank promissory notes and also two signed blank cheques drawn on State Bank of India, Main Branch, Trichy from the petitioner in the month of April 2004. Again, the petitioner and his mother borrowed a sum of Rs.15,00,000/-, in which Rs.5,00,000/- has been deducted for future interest and remaining amount of Rs.10,00,000/- only lend to the petitioner and his mother. On the said date, the petitioner and his mother registered the mortgage deed in favour of the respondent and also issued signed blank cheques and pro-notes in favour of the respondent. Therefore, the petitioner and his mother called upon the respondent not to present the above mentioned cheques for collection as they were not issued in discharging of any liability. Further, on 22.11.2005 itself, the petitioner and his mother issued letter to the Branch Manager, Canara Bank, Pudukottai and informed that the above cheques were not issued in discharging of any liability and as such, requested the bank not to honour those cheques, if presented for collection. After receipt of the same, the respondent issued reply notice dated 02.12.2005 and he simply denied the averments made in the notice dated 22.11.2005 and no specific denial of receipt of signed blank cheques from the petitioner and his mother. Therefore, the present complaint is nothing but abuse of process of law and is liable to be quashed.

5. The learned counsel appearing for the respondent contended that this quash petition is filed on disputed question of facts and the petitioner raised factual de