IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE NINTH DAY OF OCTOBER TWO THOUSAND AND NINE PRESENT HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL PETITION No.3092 OF 2009 Between: Mudupalli Bhogendra Venkata Rama Gupta ..... Petitioner/Accused AND 1. Kotnani Ramesh Kumar ..... Respondent/Complainant 2. The Sate of Andhra Pradesh, Rep. by its Public Prosecutor, High Court of A.P., Hyderabad. ..... Respondents The Court made the following: ORDER: This Criminal Petition, under Section 482 of the Code of Criminal Procedure, 1973, is filed by the petitioner/accused to quash the proceedings in C.C.No.115 of 2007, on the file of the learned II Additional Judicial Magistrate of I Class, Eluru, West Godavari District, registered for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881. 2. The brief facts that are necessary for the disposal of the present criminal petition may be stated as follows: It is alleged in the complaint that the petitioner/accused borrowed an amount of Rs.1,00,000/- on 07.05.2006 from the first respondent/complainant for discharging the sundry debts and family expenses agreeing to repay the same with interest @ 24% per annum and executed a promissory note on the even date in favour of the first respondent /complainant. When the first respondent/complainant demanded to repay the amount due to him, the petitioner/accused issued a cheque bearing No.217671, dated 04.02.2007, for an amount of Rs.95,000/- towards part satisfaction of the debt due to the first respondent/complainant. When the cheque was presented by the first respondent/complainant, it was returned with an endorsement "Funds Insufficient". After giving statutory legal notice, dated 28.02.2007, the complaint is filed. Challenging the same, the present quash petition is filed. 3. Learned counsel appearing for the petitioner/accused contended that all the transactions have taken place at Eluru, but the statutory requirement as required under Section 138 (b) of the Negotiable Instruments Act, 1881, has not been properly complied with; that knowing fully well that the petitioner/accused was residing at Eluru, falsely, the notice was got issued to the address at Hyderabad; and that therefore, continuation of the impugned proceedings is nothing but abuse of process of Court and he prays to quash the impugned proceedings. 4. In support of his contention, learned counsel appearing for the petitioner/accused relied upon a decision reported in Shakti Travel & Tours, Appellant v. Sate of Bihar and another, Respondents[1], wherein it was held thus: “The accused who is the appellant, assails the order of the High Court refusing to quash the complaint filed under Section 138 of the Negotiable Instruments Act. The only ground on which the learned counsel for the appellant prays for quashing of the complaint is that on the assertions made in para 8 of the complaint, it must be held that notice has not been served and, therefore, an application under Section 138 could not have been maintained. Undoubtedly, the accused has a right to pay the money within 15 days from the date of the service of notice and only when it fails to pay, is it open for the complainant to file a case under Section 138 of the Negotiable Instruments Act. That being the position and in the complaint itself having not been mentioned that the notice has been served, on the assertions made in para 8, the complainant itself is not maintainable. We accordingly quash the complaint.” 5. There is no dispute that giving of notice under Section 138 (b) of the Negotiable Instruments Act, 1881, is mandatory one so as to give an opportunity to the petitioner/accused to enable him to pay the amount. Whether at the time of issuing notice, the petitioner/accused was residing at Hyderabad or at Eluru, whether the address mentioned in the notice is correct or not; are the questions of fact which are required to be decided and determined by the trial Court after adducing evidence. Those questions of fact cannot be decided exercising the jurisdiction under Section 482 of the Code of Criminal Procedure, 1973. In view of the fact that the allegations in the complaint made out a prima facie case for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881, the question of quashing the complaint does not arise. 6. Accordingly, the Criminal Petition is dismissed. ______________ (K.C.BHANU, J) Dated: 9th October, 2009. KL [1] (2002) 9 Supreme Court Cases 415