HON’BLE SRI JUSTICE R.KANTHA RAO CRL.P.NO. 6112 OF 2007 DATED: 15.07.2010 BETWEEN: C.S.Radhapurnima .. Petitioner And B.Manemma and another .. Respondents HON’BLE SRI JUSTICE R.KANTHA RAO CRL.P.NO. 6112 OF 2007 ORDER: This criminal petition is filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in C.C.No.1822 of 2003 on the file of the IX Additional Chief Metropolitan Magistrate, Hyderabad. I have heard Sri G.Narender Raj, learned counsel appearing for the petitioner, Sri N.Sudhakar Rao, learned counsel appearing for the respondent No.1-complainant and the learned Public Prosecutor representing the State. The facts relevant for considering the criminal petition may be stated as follows: The first respondent, who is the housewife had advanced an amount of Rs.35,000/-to the petitioner on a promissory note executed by the petitioner on 08.11.2002 undertaking to pay the amount borrowed together with interest at the rate of 6% per annum on demand by the end of December, 2002. The petitioner failed to repay the amount within the stipulated date and on persuasion by the first respondent, the petitioner issued a cheque bearing No.646028, dated 07.10.2003 for an amount of Rs.35,000/-drawn on Indian bank, Barkatpura, Hyderabad. The first respondent presented the cheque on 07.10.2003 for collection, but it was returned unpaid on the ground of insufficient funds in the account. Thereafter, the complaint was filed before the learned Magistrate in which she averred that the petitioner deliberately evaded the payment and deliberately issued the cheque with a mala fide intention to cheat the first respondent, and thus, she is liable to be punished under Section 138 of the Negotiable Instrument Act. It is also mentioned in the complaint that the cause of action for filing the complaint arose on 16.10.2003, the date of issuance of legal notice demanding payment of the cheque value. The sole contention urged by the learned counsel appearing for the petitioner is that the first respondent failed to disclose the cause of action as required under Section 138 of N.I. Act and the Court below in an erroneous view of the matter took cognizance of the case and the complaint is liable to be quashed. Perusal of the complaint filed by the first respondent does not indicate anywhere about the service of notice on the petitioner and whether she failed to pay the cheque amount within 15 days from the date of service of notice which is required under Section 138 of N.I. Act. Reliance is placed by the learned counsel appearing for the petitioner on SHAKTI TRAVEL AND TOURS v STATE OF BIHAR AND ANOTHER[1] wherein the Supreme Court held as follows: “The only ground on which the learned counsel for the appellant prays for quashing of the complaint is that on the assertions made in paragraph 8 of the complaint, it must be held that notice has not been served and therefore, an application under Section 138 could not have been maintained. Undoubtedly, the accused has a right to pay the money within 15 days from the date of the service of notice and only when he fails to pay, it is open for the complainant to file a case under Section 138 of the Negotiable Instruments Act. That being the position and in the complaint itself having not been mentioned that the notice has been served, on the assertions made in paragraph 8, the complaint itself is not maintainable. We accordingly quash the complaint.” The learned counsel appearing for the respondent, on the other hand submitted that the learned Magistrate before taking cognizance of the offence recorded the sworn statement of the first respondent/complainant and the sworn statement discloses issuance of notice by the first respondent and receiving the said notice by the petitioner and her failure to pay the amount within 15 days from the date of receipt of the said notice. According to the learned counsel, the sworn statement is an integral part of the complaint and requires to be taken as cumulative along with the complaint, therefore, it cannot be said that there is no cause of action. However, the said contention cannot be accepted in view of the ratio laid down in K.JANAKIMANOHARAN AND ANOTHER v M/S GAYATRI SUGAR COMPLEX LIMITED, HYDERABAD AND ANOTHER[2] where this Court held as follows: “Learned counsel appearing on behalf of the respondent- complainant however, would submit that the averments and allegations made in the complaint cannot be read in isolation, but have to be read along with the sworn statement recorded at the time of taking the complaint on file and also the allied documents, such as, notice, reply notice, and it would be enough that a cumulative reading reveals the commission of the offence punishable under Section 138 of the Act. Such documents filed along with the complaint and sworn statement forms an integral part of the complaint.” “The conclusion is thus inescapable that the sworn statement and the statements recorded on oath by a Magistrate at the time of taking cognizance of an offence on complaint do not form an integral part of the complaint. The submission made by the learned counsel for the respondent-complainant is accordingly rejected.” “It is well settled that for the purpose of exercising the power under Section 482 of the Code to quash a complaint, this Court would have to proceed entirely on the basis of the allegations made in the complaint per se. This Court does not undertake to examine the correctness or otherwise of the allegations. But in case no offence is committed on the allegation and the ingredients of penal provisions are not made out, this Court in exercise of power under Section 482 of Cr.P.C. would be well within its limits and be justified in quashing the proceedings. This Court is bound to act positively to prevent abuse of legal process. It is duty bound to prevent manifest injustice as a result of abuse of legal process.” “ In this case the contents of the complaint alone are scrutinized in accordance with the parameters of review in exercise of jurisdiction under Section 482 of the Code as repeatedly laid down by the Apex Court.” In view of the above mentioned legal position, the complainant must disclose cause of action as required under Section 138 of the N.I. Act; otherwise the Court cannot take cognizance of the offence punishable under Section 138 of the Act. Therefore, the criminal petition succeeds. In the result, the entire proceedings in C.C.No.1822 of 2003 on the file of the IX Additional Chief Metropolitan Magistrate, Hyderabad against the petitioner are quashed. The criminal petition is allowed. ___________________ R.KANTHA RAO,J Dated:15.07.2010 kvrm HON’BLE SRI JUSTICE R.KANTHA RAO CRL.P.NO. 6112 OF 2007 DATED: 15.07.2010 [1] 2001 AIR SCW 2307 [2] 2000(4) ALT 325