Liability for cheque issuance under Section 138 of the Negotiable Instruments Act cannot be determined at the quashing stage and requires evidentiary support.

O R D E R

The petitioner is the accused in ST.No.884/2005 on the file of the Judicial Magistrate of the First Class-II, Thiruvananthapuram. The second respondent herein filed a complaint, copy of which is marked as Annexure-A, against the petitioner alleging offence under Section 138 of the Negotiable Instruments Act with a plea that in discharge of an existing liability, the petitioner issued four cheques. When presented, the cheques were returned with the endorsement ‘payment stopped by the drawer’. Though a lawyer notice demanding discharge of liability was caused the liability was not cleared, but a reply was sent.

2. According to the petitioner, there is no liability subsisting between the petitioner and the second respondent and that the cheques in dispute were issued only to compromise certain cases pending between the second respondent and the brother-in-law of the petitioner. Annexure-C is the compromise. Annexure-D is the common judgment in pursuance of Annexure-C. In acknowledgment of the cheques, Annexure-B receipt was also issued. According to the learned counsel, a reading of Annexure-B would show that there was no outstanding liability and hence no offence under Sec.138 of the Negotiable Instruments Act is made out.

3. In contra, the learned counsel for the second respondent would contend that there are sufficient averments in the complaint regarding the existence of the liability and that the second respondent is not admitting Annexure-B receipt and that with the materials on record there are sufficient averments to prosecute the petitioner under Sec.138 of the Negotiable Instruments Act and that the request to quash the proceedings in exercise of the powers vested on this Court under Sec.482 of the Criminal Procedure Code is without any merit.

4. Having heard either side and perusing the records, I find that in the complaint there is specific averment that the cheques in dispute were issued in discharge of an existing debt. Whether the cheques were issued in discharge of a debt or not is a matter for evidence. Whether Annexure-B receipt was executed or not is also a matter of evidence. These matters cannot be decided in a proceeding under Sec.482 of the Code of Criminal Procedure. I find little material to quash Annexure-A complaint. This Criminal Miscellaneous Case is devoid of any merit. Accordingly it is dismissed without prejudice to the right of the petitioner to defend the proceedings before the trial court.

P.S.GOPINATHAN, JUDGE KVS/-