THE HONOURABLE SRI JUSTICE A.GOPAL REDDY Crl.P.No.5846 of 2007 Date of Order: 24-09-2010 Between: M.Vittal ..Petitioner and 1. M.Venkatesulu and another ..Respondents The Court made the following Order: THE HONOURABLE SRI JUSTICE A.GOPAL REDDY Crl.P.No.5846 of 2007 Oral order: This petition under Section 482 Cr.P.C. is to quash the proceedings in C.C.No.30 of 2006 pending on the file of Judicial First Class Magistrate, Rayadurg, wherein the petitioner faced the trial for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 (for short “N.I.Act”). The respondent/complainant filed the above complaint stating that the petitioner availed hand loan of Rs.4,00,000/- from him in the year 2005; for due discharge of the debt the petitioner had issued two cheques bearing Nos.556855 and 556856 dated 10-01-2006 and 11- 01-2006 respectively for Rs.2 lakhs each drawn on Syndicate Bank, Indira Nagar, Bangalore. When the said cheques were presented for collection, they were dishonoured by the bank on the ground “for want of funds”. The bank returned the above two cheques to the complainant through their letter dated 27-01-2006. On receipt of the same, the complainant got issued a registered notice to the petitioner/accused on 10-02-2006 regarding return of the above two cheques and called upon the accused to pay the amount covered by two cheques. The petitioner though received the legal notice, did not pay any amount towards the above two cheques. Therefore, the above complaint has been filed on 01-03-2006. The learned Magistrate took the case on file. On issuing summons, the petitioner/accused filed the present petition to quash the proceedings in C.C.No.30 of 2006 contending that he has not given any cheques to the complainant at any point of time and there is no relationship of debtor and creditor between the petitioner/accused and the complainant nor any loan has been taken by the petitioner. The complainant is an employee working in the criminal courts at Rayadurg and now he is under suspension. Taking advantage of his acquaintance in the department and in collusion with K.Narayana Reddy, the present complaint is filed which is liable to be quashed. Sri P.R.Prasad, learned counsel for the petitioner contends that notice issued by the complainant on 10-02-2006 was returned on 20-02-2006 with postal endorsement “not found returned to the sendor” and the same is un-served. Even assumed that the notice is deemed to have been served on the accused on 20-02-2006, the complaint/petition as such is filed on 01-03-2006 i.e. before expiry of 15 days, which is premature and the same is not maintainable. He further contends that there is no demand in the notice for payment of the amount and the compliant allegations are conspicuously absent about complying statutory provisions of Section 138 of N.I.Act; therefore, compliant cannot be taken on file and the same is liable to be quashed. On the other hand, learned counsel for the respondent/complainant pointed that the present petition is filed after the death of the complainant and the legal heirs of the complainant filed a petition to continue the proceedings and the same was allowed. The present petition, which is filed on 05-10-2007 against the dead person, is not maintainable. He further contends that notice sent to the petitioner/accused was received by him on 14-02-2006 as per the postal acknowledgement and the complaint as such was filed after expiry of 15 days. Therefore, the complaint is not premature as contended by the learned counsel for the petitioner. This Court initially stayed the trial in C.C.No.30 of 2005 but the same has not been extended after expiry of 2nd week of June, 2008 onwards. In the result, there is no stay. When this Court called upon the status report of the case, the Junior Civil Judge, Rayadurg through his letter dated 21-09-2010 informed the Registrar (Judicial) that the legal representatives of the complainant, namely, wife, son and daughter filed a petition to permit them to come on record to continue the proceedings and the said petition was allowed. In view of stay granted by this Court, consequential steps to carry out the amendment cannot be carried out. The accused filed Crl.M.P.Nos.490 and 491 of 2007 for permanent exemption in attending the Court and to discharge him from the case, which are pending along with main C.C. and in view of stay granted by this Court, the accused is not attending the Court except filing petition under Section 317 Cr.P.C. The complainant in his notice categorically stated that the cheques issued by the petitioner have been disnoured and called upon him to remit Rs.4 lakhs covered by two cheques, failing which he is forced to take appropriate legal steps under Section 138 to 142 of N.I.Act. The documents filed along with the complaint, namely, original cheques, legal notice, postal receipt dated 10-02-2006, postal acknowledgement dated 14-02-2006 received by the accused and also one un-served cover clearly show that the notice was served on 14-02-2006 and the compliant as such is filed on expiry of 15 days on the date of issuance of notice. The Supreme Court in M/S. SAKETH INDIA LTD. V. M/S. INDIA SECURITIES LTD.[1] held that necessary ingredients under Sections 138 and 142 of N.I.Act whether established or not can be effectively adjudicated on leading evidence. When postal acknowledgement showing receipt of notice by the accused/petitioner is filed by the complainant, an opportunity should be given to him to establish compliance of provisions of Section 138 N.I.Act before initiation of the proceedings, namely, expiry of 15 days from the date of demand made and deemed date of service of notice on the accused etc. Prima facie, compliant allegations and documents filed along with the complaint do disclose an offence, which necessarily have to be established during the course of trial and it is a triable issue to which the complainant should be given an opportunity to lead evidence. No ground is made out to quash the proceedings. The Criminal Petition is accordingly dismissed. _________________ A.GOPAL REDDY, J. 24-09-2010 Murthy [1] AIR 1999 SC 1090