ORDER
1. Heard the learned Counsel for the petitioners and Mr, Sudhakar Reddy, learned Counsel on behalf of respondent No. 1.
2. This is an application filed tinder Section 482 Cr.PC to quash the proceedings in CC No. 8 of 1997 on the file of the learned Judicial Magistrate of First Class, Sullurpet. The issue raised in this petition is not res Integra. This Court had an occasion to consider the very question in Uplanche Mallikarjun v. Ratkanti Vimala, 1997 (2) ALT (Crl.) 342 = 1997 (2) APLJ 389, and this Court held as follows :
“5. The learned Counsel for the respondent submitted that the petitioner met the complainant and requested to become a member of the said Marriage Trust and then she believed their version and became a member and completed all the formalities by paying the amount as directed and the petitioners herein issued a cheque on 30-6-1996 for Rs.30,000/-and the same was dishonoured and hence they are liable for an offence under Sectionl38oftheAct.
6. There is no dispute with regard to the issuance of cheque by the petitioners which was presented and the same was dishonoured with an endorsement insufficient funds. The only point that arises for consideration is whether the complaint is maintainable in the absence of any allegation that the cheque was issued in discharge of whole or part of the Jegally enforceable debt or liability. It is useful to refer to Section 138 of the Act which reads as under :
“Where any cheque drawn by a person on an account maintained by him with a bank for payment of any amount or money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the
amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may extend to one year, or with fine which may extend to twice the amount of the cheque.”
Thus it is clear that the cheque should be issued by the drawer in discharge of the full or part of the debt or liability and if the said cheque was dishonoured due to insufficient funds, etc., then only Section 138 of the Act gets allracted, if other conditions arc complied with. On a perusal of the averments of the complaint, there is no averment that the cheque was issued by the petitioner in discharge of any legally enforceable debt or other liability. I am fortified in my conclusion by a decision of Division Bench of this Court in B. Mohan Krishna v. Union of India, (DB), wherein this Court in para 51 of its judgment observed as under:
“Where a cheque is issued not for the purpose of discharge of any debt or other liability, the maker of the cheque is not liable for prosecution. For example, if the cheque is given by way of a gift or present and if it is dishonoured by the bank, the maker of the cheque is not liable for prosecution. Unless the two conditions set out in Section 138 are satisfied, no criminal liability can be fastened….”
Therefore, in the light of the foregoing discussion, I hold that the complaint is not maintainable and the petitioners are entitled to quash the proceedings.”
3. I do not find any reason whatsoever to take a different view than the one taken by this Court in the above said decision.
4. However, the learned Counsel for the respondent No.1 submits that the complaint has been filed not only under Section 138 of the Negotiable Instruments
Act but also under Section 420 IPC. I have carefully perused the complaint filed by the complainant. There is no averment in the complaint attracting the provisions of Section 420 IPC. Even if the averments made in the complaint are taken to be true on their face value, the same is unsustainable even with regard to the alleged offence under Section 420 IPC.
5. For the aforesaid reasons, the complaint is quashed following the above said decision of this Court (supra). The petition is accordingly allowed.