HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO CRIMINAL PETITION No.4866 of 2011 Date: July 11, 2011 Between: Athota Sunitha … Petitioner/ Accused And 1. The State of A.P., by Public Prosecutor, High Court of A.P., Hyderabad & another. … Respondents/ Complainant * * * HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO CRIMINAL PETITION No.4866 of 2011 O R D E R: This application is filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in C.C. No.506 of 2010 on the file of III Additional Judicial Magistrate of the First Class, Khammam. 2. A complaint under Section 138 of the Negotiable Instruments Act (for short “the Act”) was filed against the petitioner herein, who is a lady and is also related to the complainant. A sum of Rs.1.00 lakh is said to have been borrowed and a cheque for the same was issued in discharge of the debt was returned on the ground that the drawer has stopped payment. The contention of the petitioner herein is that there is no legally enforceable liability and therefore the complaint is not maintainable. 3. The purpose for which the cheque has been issued can only be established after taking evidence and it cannot be decided in this proceedings. Learned counsel for the petitioner strongly contends that for an offence under Section 138 of the Act, the ingredients are that the cheque should have been returned for want of funds or the cheque was issued for an amount exceeding the balance in the account. According to the counsel for the petitioner, since the stoppage of payment in this case at the instance of the drawer does not attract any of the ingredients under Section 138 of the Act, the complaint has to be quashed. 4. In this connection, it is to be noted that the allegations in the complaint have to be taken into consideration, as can be seen from paragraph No.4 of the complaint, there is a clear allegation that the cheque was issued without sufficient funds and with dishonest intention. Therefore, the subsequent stoppage of the payment cannot be taken as bona fide one. The question whether the funds are available in the bank or not is a question of fact to be decided during the trial, so also the stoppage of the payment for the reasons which are not clear have to be only established by evidence. Therefore, as the matter stands the issue of cheque is admitted, the only dispute about the enforceability of the liability which fact is to be decided on evidence and the further question as to whether the cheque was issued without funds or not can also be established only by evidence. Therefore, mere reference by the bank that the payment of cheque amount was stopped at the instance of the drawer and that Section 138 of the Act is not attracted, cannot be taken into consideration at this stage unless evidence is taken. Therefore, it is not a case where power under Section 482 of Cr.P.C. is to be exercised. 5. Accordingly the criminal petition is dismissed. The lower Court is directed to dispose of the case within six months, as the petitioner is said to be a lady, aged more than 50 years. The lower Court may also consider the request of the petitioner at any time for dispensing with the attendance for the reasons to the satisfaction of the lower Court. ____________________________ N.R.L. NAGESWARA RAO, J Date: July 11, 2011. BSB