Case Note & Summary
The petitioner, R Parimala Bai, filed a petition under Section 482 of the Code of Criminal Procedure, 1973 seeking quashing of proceedings in CC No.22036/2009 pending before the XVI ACMM, Bengaluru, for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881. The sole ground raised was that a prima facie reading of the complaint filed by the respondent-complainant revealed no allegation that there existed a legally recoverable debt from the accused. The petitioner's counsel argued that in the absence of such an allegation, Section 138 of the Act was not attracted. The court examined the complaint averments and found that the complainant had merely stated that the accused had issued a cheque for a sum of Rs.1,00,000/- towards repayment of a loan, but there was no specific assertion that the loan was legally recoverable or that the debt was enforceable. The court held that the essential ingredient of a legally recoverable debt was missing, and therefore the proceedings constituted an abuse of process of law. Consequently, the court allowed the petition and quashed the entire proceedings in CC No.22036/2009.
Headnote
A) Negotiable Instruments Act - Dishonour of Cheque - Section 138 - Legally Recoverable Debt - The complaint under Section 138 of the Negotiable Instruments Act, 1881 must contain an allegation that the cheque was issued towards a legally recoverable debt or liability. In the absence of such an averment, the essential ingredients of the offence are not made out, and the proceedings are liable to be quashed under Section 482 of the Code of Criminal Procedure, 1973. (Paras 3-5)
Issue of Consideration
Whether the proceedings under Section 138 of the Negotiable Instruments Act, 1881 can be quashed when the complaint does not contain any allegation regarding the existence of a legally recoverable debt.
Final Decision
The petition is allowed. The entire proceedings in CC No.22036/2009 on the file of the XVI ACMM, Bengaluru, are quashed.
Law Points
- Section 138 NI Act requires existence of legally recoverable debt
- Absence of debt allegation vitiates complaint
- Quashing under Section 482 CrPC for abuse of process
Case Details
2018 LawText (KAR) (07) 73
Vinay T. R. for C. V. Sudhindra (for petitioner), Prashanth U. T. (for respondent)
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Nature of Litigation
Criminal petition under Section 482 CrPC for quashing of proceedings in a cheque dishonour case under Section 138 NI Act.
Remedy Sought
Petitioner sought quashing of entire proceedings in CC No.22036/2009 pending before XVI ACMM, Bengaluru.
Filing Reason
The complaint under Section 138 NI Act did not contain any allegation regarding existence of a legally recoverable debt.
Issues
Whether the absence of an allegation of legally recoverable debt in a complaint under Section 138 NI Act warrants quashing of proceedings.
Submissions/Arguments
Petitioner argued that the complaint lacked any averment that the cheque was issued towards a legally recoverable debt, which is an essential ingredient of Section 138 NI Act.
Respondent's submissions not recorded in the judgment.
Ratio Decidendi
For an offence under Section 138 of the Negotiable Instruments Act, 1881, the complaint must contain an allegation that the cheque was issued towards a legally recoverable debt or liability. In the absence of such an averment, the essential ingredients of the offence are not made out, and the proceedings are liable to be quashed under Section 482 CrPC as an abuse of process of law.
Judgment Excerpts
The sole ground that has been taken before this court seeking quashing of the above said proceedings is that - a prima facie meaningful reading and understanding of the complaint itself filed by the respondent – complainant before the Trial Court reveals that, there is no allegation in the complaint that there exists a legally recoverable debt from the accused.
In the absence of such existence of the legally recoverable debt, Section 138 of the Act itself is not attracted.
Procedural History
The respondent filed a complaint under Section 138 NI Act against the petitioner, which was registered as CC No.22036/2009 before the XVI ACMM, Bengaluru. The petitioner filed the present petition under Section 482 CrPC seeking quashing of those proceedings.
Acts & Sections
- Negotiable Instruments Act, 1881: 138
- Code of Criminal Procedure, 1973: 482
