Private complaint under Section 200 of Cr.P.C. was filed

by the respondent for the offence under Section 138 of

Negotiable Instrument Act, 1881 (for short ' the Act') alleging

that, the cheque issued by petitioners/accused Nos.1 and 2

towards

legally

enforceable

debt,

when

presented

for

realization was dishonored for want of funds.

Learned Magistrate after recording the sworn

statement registered the case and issued summons. Taking

exception to the same, this petition is filed.

3.

Learned counsel for petitioners/accused Nos.1 and

2 would make following submission:

i)

Accused No.1 was not an authorized signatory to

the cheque alleged to have been issued towards legally

enforceable debt. Hence, cognizance taken as against accused

No.1 is impermissible.

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ii)

The statutory notice under Section 138 of the Act,

issued by the complainant is premature, since the cheque is

alleged to have been dishonored on 02.08.2017, and the notice

was issued on 30.08.2016.

3.

In the cross-examination, the complainant has

categorically admitted that accused have made part payment of

Rs.8,91,500/-, and the same having not been endorsed on the

subject cheque, cheque could not have been presented for

encashment . In support, he placed reliance on the decision of

the Hon’ble Supreme Court in the case of "Dashrathbhai

Trikambhai Patel V/s. Hitesh Mahendrabhai Pate & Anr"

reported in 2022 Live Law (SC) 830.

4.

On

the

other

hand,

learned

counsel

for

respondent/complainant

submits

that

the

payment

of

Rs.8,91,500/- was towards interest payable by the accused on

the loan barrowed by the complainant and the same has been

stated in the notice issued under Section 138 of the Act. He

further submits that the endorsement issued by the bank

clearly indicates that the cheque was presented on 22.07.2008

and the same was returned on 02.08.2017 and there was

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typographical error in mentioning the date in the legal notice

and the said error cannot invalidate the notice issued under

Section 138 of the Act.

5.

I have examined the submissions made by the

learned counsel for the parties.

6.

Admittedly, the said cheque was issued by accused

No.2, and accused No.1 was not signatory to the said cheque.

Hence,

cognizance

taken

as

against

accused

No.1

is

impermissible. In the cross-examination, the complainant has

categorically admitted sum of Rs.8,91,500/- has been received

towards interest payable on the alleged loan amount, and the

same is also categorically stated in the notice issued under

Section 138 of the Act. Mere typographical error in mentioning

the date of issuing notice does not invalidate the notice issued

under Section 138 of the act, when the material discloses that

the notice was issued after the cheque was dishonored within

the time specified.

7.

Hence,

there

was

no

requirement

for

the

complainant to endorse the part payment made by the accused

as specified under Section 56 of the N.I.Act, 1881 Hence, the

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decision

relied

by

the

learned

counsel

for

the

petitioners/accused is not applicable to the facts of the case. In

view of the same, continuation of criminal proceedings against

accused No.1 will be an abuse of process of law.

Accordingly, I pass the following:

ORDER

Criminal Petition is allowed as against accused

No.1, and dismissed as against accused No.2.

Impugned proceedings in C.C.No.23900/2017 on

the file of XII A.C.M.M. Court, Bengaluru City, insofar it relates

to accused No.1 is hereby quashed, and the learned Magistrate

to proceed against accused No.2 in accordance with law.

All contentions urged in this petition are kept open.

Sd/-

JUDGE

GPG