IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE 28TH DAY OF DECEMBER, TWO THOUSAND AND ELEVEN PRESENT HON'BLE SRI JUSTICE N. RAVI SHANKAR CRIMINAL PETITION No.5881 OF 2008 Between: D.Anjan Kumar … Petitioner And Bathuka Gelvaiah and another … Respondents This Court made the following: HON'BLE SRI JUSTICE N. RAVI SHANKAR CRIMINAL PETITION No.5881 OF 2008 ORDER: Heard Sri B.Nalin Kumar, learned counsel for the petitioner. Notice was ordered to the respondent – complainant and though it is served, he did not turn up. 2. The petitioner is the accused in C.C.No.321 of 2008 on the file of the Court of Judicial Magistrate of First Class, Kalvakurthi (trial court). The offence alleged against him is the one punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short, “the Act”). 3. The case of the complainant, is that under an agreement of sale, dated 01.03.2008, accused agreed to purchase certain extent of land belonging to the complainant’s wife and paid a sum of Rs.1,00,000/- in cash and another sum of Rs.45,000/- by way of cheque bearing No.378854, dated 05.03.2008, drawn on State Bank of India, Kalvakurthi i.e., in all a sum of Rs.1,45,000/- towards advance and that the said cheque ultimately bounced on 10.03.2008 on the ground of insufficiency of funds. The complaint averments show that though the land belonged to the complainant’s wife, the cheque in question for a sum of Rs.45,000/- was issued in favour of the complainant. Nothing is mentioned in the complaint except pleading that the above cheque was given towards part of the advance amount in favour of the complainant and bounced for want of funds; and that after issuing the statutory notice and following the procedure, the complaint has been filed. 4. It may be noted that the allegations or averments in the complaint as such do disclose an offence under Section 138 of the Act. Sri B.Nalin Kumar, however, pointed out that the complainant’s wife and the complainant committed breach of several terms of the sale agreement, dated 01.03.2008 and, therefore, the petitioner has cancelled the said agreement and consequently the amount covered by the cheque in question, was not a legally enforceable debt as nothing is due from him under the agreement and if at all the complainant or his wife is aggrieved, they should sue him for damages for breach of agreement or in the alternative for specific performance as a vendor can also bring a suit for specific performance. He, therefore, argued that the complaint is liable to be quashed on that ground alone. 5. It may be noted that the plea of the accused that the agreement under question was breached in several respects by the complainant and his wife and, therefore, he was not liable to pay any amounts under it and the complainant or his wife are also not entitled to recover any amounts from him and, therefore, there cannot be said to be in existence any legally subsisting debt constitute disputed questions of fact to determine which trial is necessary and, therefore, it follows that they cannot be gone into in this petition. 6. Sri B.Nalin Kumar, however, placed reliance upon decisions of the Supreme Court in P.Venugopal v. Madan P.Sarathi[1], Krishna Janardhan Bhat v. Dattatraya[2], Hiten P.Dalal v. Bratindranath Banerjee[3], and also a Division Bench decision of this Court in B.Mohan Krishna v. Union of India[4] and contended that going by the principles laid down in the aforesaid decisions, it is for the complainant first of all to establish his plea on factual basis for drawing the presumption under Section 139 of the Act regarding the existence of a legally recoverable debt and since the complaint averments would show that no such basis is laid the plea of the accused should be accepted. The above decisions are no doubt lay down the proposition that the complainant in the complaint must plead the factual foundation for drawing the presumption under Section 139 of the Act and also the presumption relating to the fact that the debt is a legally recoverable debt and it is thereupon that the burden shifts to the accused to rebut that presumption. There is no dispute about this proposition. 7. In the present case, a reference is made to the agreement of sale between the complainant’s wife and the accused, and it is mentioned that towards the payment of a part of the advance amount i.e., Rs.45,000/- the accused gave the cheque in question and that was dishonoured for want of funds. Thereafter it is stated that the required statutory notice have been given. Thus the complaint averments can be said to show that the complainant has laid the basis i.e., issue of cheque for advance and its dishonour. It may then be noted that the plea of the petitioner/accused that there was breach of agreement of sale and he was not liable to pay any amount to the complainant or his wife under the agreement of sale may be true or may not be true, but these are matters for evidence and this court cannot go into the same in this petition. Thus, the position relating to application of presumption under Section 139 of the Act or existence of subsisting debt also become a matter of evidence. It may be noted that if the court on plea of the accused decides upon the above question one way or the other in this petition that may amount to prejudging the case of either party as that has to be decided on evidence. In these circumstances, I regret that I am unable to agree with Sri B.Nalin Kumar. 8. Accordingly, this Criminal Petition is dismissed. The trial court shall proceed to dispose of the matter expeditiously without being influenced in any manner by any of the observations made in this order. There shall be no order as to costs. ______________________ N. RAVI SHANKAR, J 28th December, 2011. lmv HON'BLE SRI JUSTICE N. RAVI SHANKAR CRIMINAL PETITION No.5881 OF 2008 28.12.2011 lmv [1] (2009)1 SCC 492 [2] (2008) 4 SCC 54 [3] (2001) 6 SCC 16 [4] 1996 Cri.L.J. 636(1)