2018 (9) TMI 999 - HC - Indian Laws

Dishonor of cheque due to insufficiency of funds - repayment of loan - Section 138 of Negotiable Instruments Act - Held that - Admittedly, the petitioner and her son issued notice on 22.11.2005 as stated above and after receipt of the same, the respondent and her husband also replied through reply notice dated 02.12.2005. Therefore, it can be construed that the alleged cheque was already obtained for the purpose of security, while borrowing the loan in the year 2003 and 2004. That apart in the said notice dated 22.11.2005, the petitioner and her son specifically averred the cheque particulars and pronotes obtained by the respondent herein. Therefore, the present complaint is nothing but abuse of process of law. The complaint cannot be sustained and it is liable to be quashed - Petition allowed.

Summary

Issues:
1. Quashing of criminal proceedings under Section 138 of Negotiable Instrument Act.
2. Allegations of borrowing money, issuance of cheques, and mortgage deed.
3. Dispute regarding loans borrowed and cheques issued.
4. Abuse of process of law and legality of the complaint.

Analysis:
1. The petition seeks to quash criminal proceedings under Section 138 of the Negotiable Instrument Act against the accused for dishonoring a cheque issued towards repayment of a loan. The respondent alleges borrowing a significant sum, issuance of a cheque, and subsequent dishonor leading to legal action.

2. The respondent claims that the accused borrowed a substantial amount and issued a cheque which was dishonored due to insufficient funds. The respondent contends that despite issuing a statutory notice, the accused failed to repay, leading to the criminal complaint and cognizance by the Judicial Magistrate.

3. The petitioner disputes the allegations, arguing that the additional loan mentioned by the respondent is implausible as the initial loan was still outstanding. The petitioner further asserts that certain cheques and promissory notes were obtained under duress and were not intended for discharging any liability, as evidenced by correspondence and notices exchanged between the parties.

4. The court, after examining the evidence and correspondence, concludes that the complaint is an abuse of process of law. The court finds that the cheques in question were obtained as security during previous loan transactions and were not issued for any enforceable debt, leading to the quashing of the criminal proceedings against the accused.

5. The judgment allows the petition, quashing the criminal complaint and closing the connected miscellaneous petition. The court's decision is based on the finding that the complaint lacks merit and the accused cannot be subjected to trial due to the abuse of legal procedures and lack of legally enforceable debt underlying the alleged cheques.

This detailed analysis of the judgment highlights the key legal aspects, arguments presented, and the court's reasoning leading to the quashing of the criminal proceedings.