HON’BLE SRI JUSTICE G.BHAVANI PRASAD CRIMINAL PETITION No.6555 of 2009 DATED:21.08.2009 Between: S.Vinod Kumar .. Petitioner And The State of Andhra Pradesh through P.S.Narayanguda, rep., by its Public Prosecutor, High Court of A.P., Hyderabad and another .. Respondents HON’BLE SRI JUSTICE G.BHAVANI PRASAD CRIMINAL PETITION No.6555 of 2009 ORDER: Heard Sri M.Achutha Reddy, learned counsel for the petitioner, and Sri A.Ramesh, learned counsel, who entered appearance on behalf of the learned Public Prosecutor for the first respondent. No notice is being ordered to the second respondent, as the matter is being disposed of at the stage of admission. The petitioner is facing prosecution for an alleged offence under Section 138 of the Negotiable Instruments Act at the instance of the second respondent, in C.C.No.350 of 2008 on the file of the IX Additional Chief Metropolitan Magistrate, Hyderabad. In the complaint, it is alleged that a hand loan of Rs.2,00,000/- was advanced by the second respondent to the petitioner in February 2006 and towards repayment of the same, the petitioner issued a cheque, dated 21.11.2006 for Rs.1,22,600/- which was dishonoured when presented, on 11.04.2007. A notice was issued to the petitioner on 21.04.2007 received by him on 30.04.2007 and subsequently, the complaint was filed into the Court. What the petitioner claims is that there was never any legally enforceable debt due from him to the second respondent and the petitioner’s brother Sampath Kumar, who obtained a blank signed cheque, as a security in a transaction, misused the same to have all these cases filed by his friend - the second respondent. However, the questions raised by the petitioner are questions of fact and the factual foundation for the complaint as claimed by the second respondent or the absence of the same as claimed by the petitioner have to be gone into by the trial Court and not by this Court. The absence of statutory notice or any failure to comply with the mandatory provisions of Sections 138 and 142 of the Negotiable Instruments Act, as claimed by the petitioner, cannot be said to be ex facie disclosed by the contents of the complaint and the proceedings cannot be quashed straight away on any such ground. While all the defences on fact and law are open to the petitioner to be taken before the trial Court, the Criminal Petition does not appear sustainable in exercise of the inherent jurisdiction which is available only in the rarest of rare cases. Consequently, the Criminal Petition is dismissed but the determination of the criminal case in C.C.No.350 of 2008 on the file of IX Additional Chief Metropolitan Magistrate, Hyderabad shall be uninfluenced by any observation made in this order. _____________________ G. BHAVANI PRASAD, J 21st August 2009 KH