THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL PETITION NO.7881 OF 2008 O R D E R;- This criminal petition is filed by the petitioner/accused to quash the proceedings in C.C.No.458 of 2004 on the file of the Judicial Magistrate of First Class, Mahaboobabad, which was filed under Section 138 r/w Sec.142 of Negotiable Instruments Act, 1881 (for short ‘the Act’). 2. The allegation is that the petitioner borrowed a sum of Rs.1,40,000/- on 15.8.2003 for his necessities and executed a demand promissory note in favour of the 2nd respondent herein. On repeated demands made by the 2nd respondent, the petitioner got issued a cheque bearing No.614608 dated 12.11.2003 of Dornakal Branch and when the cheque was presented in the bank, it was dishonoured. The 2nd respondent got issued a legal notice on 10.5.2004, but it was unserved. Hence, the complaint. 3. The learned counsel for the petitioner contended that knowing fully well the address of the petitioner, notice was issued to wrong address, that the cheque was given towards security for the pronote executed by the petitioner, but not towards discharge of legally enforceable debt and hence, he prays to quash the proceedings. 4. On the other hand, learned counsel appearing for the 2nd respondent contended that the cheque in question was not denied or disputed that whether the cheque was given towards security purpose or towards discharge of legally enforceable debt is a question of fact, that whether the notice was sent to the address mentioned in the notice is also the matter to be decided by the trial Court and hence, he prays to dismiss the petition. 5. There cannot be any dispute that if the allegations in the complaint do not make out prima facie case of the offence under Section 138 of the Act, then only question of quashing the complaint arises. The allegation against the petitioner is that he borrowed an amount of Rs.1,40,000/- and executed a promissory note on 15.8.2003 and when the 2nd respondent demanded the petitioner to pay that amount, the petitioner issued a cheque for the said amount to discharge the legally enforceable debt. It is not in dispute that when the cheque was presented the bank, it was unpaid and returned to the complainant with an endorsement ‘insufficient funds’. After giving statutory legal notice, the present complaint is filed. 6. The question whether the statutory notice as contemplated under Section 138(b) of the Act was given to the correct address of the petitioner or not whether the cheque was given as security for the amount borrowed under a promissory note are the matters required to be decided after adducing necessary evidence. These disputed questions of fact cannot be resolved exercising the powers under Section 482 of the Cr.P.C. Since the allegations in the complaint made out a prima facie case of the offence punishable under Section 138 of the Act, question of quashing the proceeding does not arise. 7. Accordingly, the Criminal Petition is dismissed. --------------------- K.C.BHANU, J DATED: 13-10-2009 PNV