ORDER

The instant Criminal Petition under Section 482 of the Code of Criminal Procedure, 1973, [for short, “Cr.P.C.”] has been filed, by the Petitioner/Accused, seeking quashment of the proceedings in C.C.No.5 of 2021 on the file of the IV Additional Chief Metropolitan Magistrate at Visakhapatnam, registered for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881.2

2 For short, N.I.Act

2. Heard Sri Poolla Sravanth, learned counsel for the Petitioner and Sri Maheswara Rao Kuncheam, learned counsel for Respondent No.2.

3. Sri K.Sandeep, learned Assistant Public Prosecutor representing the State/Respondent No.1 is in attendance.

4. Learned counsel for the Petitioner would submit that after filing of the present petition, Respondent No.2 had initiated arbitration proceedings in A.R.C.No.428 of 2017 pertaining to the same loan transaction and obtained ex parte arbitral award dated 13.03.2018 behind back of the Petitioner. Learned counsel further would submit that Respondent No.2 initiated execution proceedings in E.P.No.344 of 2021 on the file of VI Additional District Court at Visakhapatnam. Respondent No.2 sanctioned the loan only after obtaining security from the Petitioner by depositing his title deeds to that effect. By suppressing the C.C.No.5 of 2021, the subject matter in the present petition, they have obtained arbitral award. Learned counsel further would submit that after obtaining award, Respondent No.2 can enforce award the amount only, he cannot revert back and claim for defaulted Equated Monthly Instalments. Petitioner herein got issued a reply stating that Respondent No.2 has obtained some empty blank signed cheques. One among those cheques mentioned in the reply is the subject matter of C.C.No.441 of 2019. Learned counsel further would submit that the subject cheque was not issued for the payment of the amount under arbitral award. It was issued regarding the payment of EMIs due to Respondent No.2. Learned counsel further would submit that Respondent No.2 obtained 13 cheques in total, while granting the loan itself. There is no legally enforceable debt relating to the subject cheque. Learned counsel finally submits that continuation of criminal proceedings against the Petitioner is mere abuse of process of law.

5. Per contra, learned counsel for Respondent No.2 would submit that whatever the contentions raised in the present petition are questions of fact which cannot be decided by this Court. Though Respondent No.2 is very much ready to settle the issue amicably, they have no come forward to avail the opportunity. Learned counsel prays for dismissal of the petition.

6. Considering the submissions made and a fair look at the contents of the complaint, the contention of the Petitioner is that the company has obtained 13 empty cheques at the time of issuing loan and by using such cheques, they are filing case by case. That apart, it is their contention that the company has approached the arbitration and obtained ex parte award relating to the same debt and therefore there is no legally enforceable debt relating to the subject cheque. This contention cannot be entertained by this Court in exercise of jurisdiction under Section 482 Cr.P.C. The reason being, they are all disputed questions of factual aspects of the matter. The existence or otherwise of the legally enforceable debt relating to the cheque has to be established by the complainant, which is rebuttable by the accused before the trial Court. Hence, it is apposite to dismiss the present petition.

7. In that view, the Criminal Petition is dismissed. This Court makes it very clear that this Court has not expressed any view touching the merits of the case. The Petitioner is at liberty to raise all the contentions in the present petition, in his defence before the trial Court. Learned trial Judge can appreciate and take appropriate decision accordingly.

As a sequel thereto, miscellaneous petitions pending, if any, shall stand closed.

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