IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE EIGHTEENTH DAY OF AUGUST TWO THOUSAND AND NINE PRESENT THE HON'BLE SRI JUSTICE G. BHAVANI PRASAD CRIMINAL PETITION NO.6360 OF 2009 Between: Koya Ramaiah. ..... PETITIONER. AND The State of A.P., Represented by Public Prosecutor, High Court of A.P. Hyderabad, and another. ..... RESPONDENTS. Petition under Section 482 of Cr.P.C praying that in the circumstances stated in the grounds filed therewith, the High Court will be pleased to quash the proceedings in C.C. No.35 of 2009 on the file of X Additional Chief Metropolitan Magistrate at Secunderabad. The Petition coming on for hearing, upon perusing the Petition and the grounds filed in support thereof and upon hearing the arguments of Mr. YELLANKI PULLA RAO, Advocate for the Petitioner and of the Public Prosecutor on behalf of the first respondent, the Court made the following: HONOURABLE SRI JUSTICE G. BHAVANI PRASAD CRIMINAL PETITION NO.6360 OF 2009 ORDER: Heard Sri. Yellanki Pulla Rao, learned counsel for the petitioner and Sri A. Ramesh, learned counsel, who entered appearance for the first respondent on behalf of the learned Public prosecutor. No notice is being ordered to the second respondent as the matter is being disposed of at the stage of admission. The petitioner is the sole accused in C.C. No.35 of 2009 on the file of X Additional Chief Metropolitan Magistrate at Secunderabad. The second respondent alleged that the accused entered into a loan agreement with the complainant, availed finance, committed default in repayment of the loan instalments and issued the subject cheque which was dishonoured. The complainant further stated that the statutory notice was issued in spite of which, no amount was paid and hence he filed complaint. The legal notice dated 28-02-2006 issued to the petitioner prior to the complaint was also filed along with the private complaint apart from the other documents. The sworn statement of the legal officer of the second respondent is also as though the petitioner himself entered into agreement with the complainant. However, the legal notice issued on the dishonour of the cheque stated about the petitioner being the guarantor for the loan agreement entered into by Koya Chandra Sekhar with the second respondent and issuing the cheque towards the overdue instalments which was later dishonoured. The petitioner contends that the cheque was issued by way of security and the bouncing of it will not come within the purview of Section 138 of Negotiable Instruments Act in the light of the decision reported in M.S. Narayana Menon @ Mani Vs. State of Kerala and another[1]. That was a case where on the evidence adduced by the parties before the trial court, a conclusion was drawn that the defence of the accused stating that nothing was due and the cheque was issued by way of security was accepted as probable. It was on the strength of acceptance of the defence as probable that it was concluded that a cheque issued towards security or for any other purpose would not come within Section 138 of the Negotiable Instruments Act. In the present case also it is always open for the petitioner to prove before the Court that the cheque was issued by way of security or for any other purpose not coming under Section 138 of the Negotiable Instruments Act but, on the allegations made by the second respondent that the dishonoured cheque was issued towards payment of overdue instalments under a loan account, it cannot be said that exfacie Section 138 read with Section 142 of the Negotiable Instruments Act has no application. If there was a legally enforceable debt under a loan agreement and a cheque was issued towards the discharge of liability under such agreement, it cannot be said that on the face of it the complaint is untenable. The discrepancy between the complaint and the sworn statement on the one hand and the legal notice on the other as to whether the petitioner himself was the executant of the loan agreement or whether he is only a guarantor also may not be so fatal to the maintainability of the complaint as to require premature interference of this Court under Section 482 of the Code of Criminal Procedure as the legal notice was appended to the private complaint and no fact was suppressed and the second respondent may or may not be able to explain the discrepancy during trial. Such disputed questions of fact as to in what capacity the cheque was issued by the petitioner and for what purpose, cannot be the subject of deep fact finding enquiry in this summary proceeding and hence the inherent jurisdiction entertained in rarest of rare cases can not be taken recourse to. Consequently, the Criminal petition is dismissed. ____________________ G.BHAVANI PRASAD, J Date: 18-08-2009. Dsh. [1] 2006 SAR (CRIMINAL) 616.