O R D E R

1. The petitioner is facing criminal prosecution on the accusations of he having committed an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 on the basis of criminal complaint case no.11086/2014 initiated by the second respondent (complainant) in the court of the Metropolitan Magistrate, Delhi, he having been summoned, after preliminary inquiry, by order dated 09.02.2015. The accusations relate to non-payment of the value of the cheque no.484425 for Rs.20,00,000/- statedly drawn by the petitioner against his account with ICICI Bank Ltd., Delhi in favour of the complainant which, upon presentation, was returned unpaid by the bank. The petitioner failed to make any payment inspite of service of notice of demand.

2. The petitioner invokes the jurisdiction of this court under Section 482 of the Code of Criminal Procedure, 1973 to pray for quashing of the said criminal complaint case on the ground it is an abuse of the process of the court.

3. The background facts leading to the filing of the complaint case are set out in the complaint by the second respondent as under :

“3. The complainant submits that the complainant was owner of property namely Shop No.2, Municipal Corporation No.1723/ to 1727 situated at Ramgali Bhagirath Palace, Chandni Chowk, Delhi-110 006 and the same was sold to one Sandip Kumar Manocha and Tanshul Manocha who is relative of the accused for Rs.26,00,000/- and the amount was shown as Rs.650,000/- in the sale deed. And since the above said purchaser was a relative of the accused therefore, it was stated by the accused that balance amount of the aforesaid property i.e. Rs.twenty lakhs will be paid by the accused therefore, on account of the aforesaid legal dues the accused has issued undated signed cheque for an amount of Rs.20,00,000/- in favour of complainant bearing number No.484425 drawn on ICICI Bank. The accused is witness to the sale deed. The power of attorney being son of complainant is aware about the transaction and was present when sale deed was executed and the cheque was given. After the aforesaid execution of the sale deed on 17.02.2011 the property was handed over to the purchaser and still the payment was not made and the complainant has waited for the period of two years and as payment is not made therefore, ultimately the complainant deposited the said cheque on 30.07.2013. A copy of the sale deed is annexed herewith.

4. The complainant submits that the aforesaid cheque bearing No.484425 was deposited by the complainant on 30.07.2013 in the bank viz. ICICI Bank Ltd., Delhi branch but the aforesaid cheque has been returned unpaid with endorsement payment stopped by drawer by banker and the same has been intimated to complainant by their banker that is ICICI Bank, Bopal Branch, Ahmedabad on 11.08.2013. A copy of cheque and return memo are annexed herewith a separate list.”

4. It is the argument of the petitioner that the complainant had filled in the date in the cheque which was admittedly issued as “undated” and therefore, it is a case of material alteration of the negotiable instrument, rendering it invalid. Reliance is placed on Jayantilal Goel Vs. Zubeda Khanum, AIR 1986 AP 120, Ramakannan vs. Chettiar & Co., (2007) 1 LW (Cri) 527 and BPDL Investment Vs. Maple Leaf Trading, 129 (2006) DLT 94. It is also the submission of the petitioner that the cheque in question was issued as “security” and, therefore, it did not represent a cheque handed over for discharge of legally enforceable debt and consequently the criminal prosecution under Section 138 of the Negotiable Instruments Act cannot be launched on such basis. Reliance is placed on M.S. Narayan Menon Vs. State of Kerala and Anr., (2006) 6 SCC 39 and Prajan Kumar Jain Vs. Ravi Malhotra, 1 (2010) BC 8.

5. The second above-noted submission cannot be accepted, without evidence being led in support in as much as the averments in the complaint that the petitioner had undertaken the liability to pay has been sup