ORDER
C.Y. Somayajulu, J.
1. At the request of the learned Counsel appearing for both sides, all these petitions were heard together and hence are being disposed of by a common order.
2. These petitions are filed to quash the complaints filed by the 1st respondent against the petitioner under Section 138 of the Negotiable Instruments Act, 1881 (for short ‘the Act’) alleging that the cheques issued to it by the petitioner, towards the value of the goods supplied, were dishonoured by the bank on which they were drawn and that ip spite statutory notice after dishonour, calling on the petitioner to pay the amounts, covered by the dishonoured cheques, petitioner filed to pay the amounts covered by the dishonoured cheques and hence is liable to be punished under Section 138 of the Act.
3. All the above complaints were instituted in 1995. Two years thereafter i.e., in 1997, the petitioner after being examined under Section 251, Cr. P.C. filed petitions seeking discharge, on the ground that the said petitions are filed at a belated stage the learned Magistrate dismissed the petitions for discharge. Hence, these petitions.
4. The main contention of the learned Counsel for the petitioner in all these petitions is that the petitioner issued only blank cheques with his signature, without date, keeping the columns relating to the name of payee and the amount blank, as per the request made on behalf
of the 1st respondent and that the columns relating to payee and the amount were subsequently filled in by the employees of 1st respondent. It is also contended that since the 1st respondent is neither the payee nor holder in due course of the dishonoured cheques the complaints fifed by the petitioner are not maintainable and in any event since there are several corrections and over-writings in the dishonoured cheques, they are to be deemed as material alterations and for that reason also that the complaints are liable to be quashed. Strong reliance is placed on Swastic Coaters Pvt. Ltd. v. Deepak Brothers and Anr., II (1997) BC 569=III (1997) CCR 528=1997(1) ALD (Crl.) 370 (AP); G.B. Lingam v. Vitta Murali Krishnamurthy, 1997(1) ALD (Crl.) 940 (AP); and Sri Taher N. Khambati v. Vinayak Enterprises, I(1995) BC 473=1994(3) ALT 21 (NRC), in support of the contentions raised. The contention of the learned Counsel for the first respondent is that in C.C. No. 316 of 1995, out of which Crl. P. No. 316 of 1995 arises, PW1 was already examined, and since the other cases are posted for trial, these petitions filed two years after the petitioner was examined under Section 251, Cr. P.C. are not maintainable as the contentions now raised can, and have to be considered at the time of disposal of the cases after trial.
5. In Swastic Coalers Private Limited case (supra) the dishonoured cheques was a post dated cheques. A learned single Judge of this Court held that since on the date of issue of the post dated dishonoured cheques there was noexisting enforceable debtor liability, no offence under Section 138 of the Act can be said to have constituted in the facts and circumstances of the case. A three Judge Bench of Supreme Court in Ashok Yeshwant Badave v. Surendra Madhavarao Nighojakar, , held that a post dated cheque is only a Bill of Exchange, and becomes a cheque within the meaning of Section 138 of the Act only on the date written on the cheques and from the date of drawal till the date mentioned on the cheque, it is only a Bill of Exchange and the provisions of Section 138 of the Act are not applicable to Bill of Exchange. In view of the said decision of the Supreme Court, the decision of the learned Single Judge release on by the learned Counsel for petitioner should be deemed to have been impliedly overruled, and so the said decision is of no help to the petitioner.
6. In G.B. Lingam case (supra), a learned Single Judge of this Court held that since the proceedings under Section 138 of the Act are criminal in nature, if the accused takes a plea that the cheque was not issued for discharge of a legally enforceable debt or liability, the complainant is bound to prove the circumstances under which the cheque was given in his favour, and that the same was issued in discharge of a legal enforceable debt and that unless the initial burden is discharged by the complainant, the presumption available under Section 139 cannot be made use of against the accused. A three-Judge Bench of Supreme Court in Hiten P. Dalai v. Bratindranath Banerjee, held that in view of Section 139 of the Act, it is obligatory on the part of the Court to presume the liability of drawer in every case where factual basis of such presumption is established, and such presumption can be rebutted by the drawer by proving, on evidence, that the holder of the cheques had not received the same towards the discharge of any liability. In K.N. Beena v. Muiniyappan, IV , also the Supreme Court held that in view of Sections 118 and 139 of the Act, the Court has to presume that the cheques had been issued for discharging a debt of liability and so the accused has to prove, in the trial, by leading evidence that there was no debt or liability and that the averments in the reply or denied by the accused, per se, do not shift the burden of proof to the complainant. In view of the said
two decisions of the Supreme Court the decision relied on by the learned Counsel for the petitioner should be deemed to have been impliedly overruled by the Supreme Court.
7. In Sri Taher N. Khambati case (supra) relied on by the learned Counsel for the petitioner a promissory note was obtained by the complainant for the amount due alongwith a blank signed cheque, to make use of it as a threat for realisation of the amount. It was held that since the accused did not issue the cheque voluntarily for discharge of any debt or liability as envisaged under Section 138 of the Act, the provisions of Section 138 of the Act are not attracted. That case came up before this Court in appeal against the judgment acquitting the accused after trial. In this case the question as to whether blank cheques, keeping the columns relating to payee, amount and date blank is a question of fact and has to be decided on the basis of evidence adduced. On the mere assertion of accused this Court by assuming the statements of the accused as true act upon such uncorrobated statement and quash a complaint.
8. Similarly the question as to whether there are material alterations in the cheques, as contended by the petitioner, cannot be decided at this stage. That question has to be decided on the basis of evidence to be adduced by parties at the time of trial. See Veera Exports v. T. Kalavathi, .
9. The Supreme Court in M/s. M.M.T.C Ltd. v. M/s. Medchl Chemicals and Pharma (P) Ltd., , held that inherent powers of quashing criminal proceedings should be exercised very stringently and with circumspection and at that stage this Court cannot go into merits and come to aconclusion that there was no existing debt or liability and quash complaint; and that it is not necessary to specifically allege in the complaint that there was a subsisting liability and enforceable debt, and to discharge the same only the cheques were issued; as there is no requirement that the complainant should specifically alleged in the complaint that there was a subsisting liability. Therefore, merely on the basis of the petitioner’s assertions that there is no existing liability between him and the complainant and that he issued blank cheques keeping the date, name of the payee and the amount blank, and that there are material alterations in the cheques, which are all matters to be established during evidence to be adduced by parties during the trial, the complaints can not be quashed. The question as to who the payee of the dishonour cheques is and how the 1st respondent can maintain the complaints, can also be decided after parties adduce their evidence. For the reason that the cases are posted for trial and since in one of the cases. PW1 was already examined as long back as on 16.5.1997, and since these petitions are filed five months thereafter, I find no ground to quash the complaints. Therefore, all the criminal petitions are dismissed. The learned Magistrate is to be directed to dispose of all the cases as expeditiously as possible at any rate, before the end of April, 2003. Petitions are ordered accordingly.