- (1.) THE petitioner has approached this court for quashing of a proceeding under section 138 of the N.I. Act, now pending before the Metropolitan Magistrate, 14th Court, Calcutta. The learned counsel for the petitioner in support of the prayer for quashing contended as follows: a) The petitioner has no legal liability to make payment of the cheque amount and the complaint has been lodged suppressing the facts the payment of the cheque amount is a question now pending before the competent civil court in a title suit where petitioner prayed for declaration a deed of sale is invalid. b) Since a competent court is in seisin of the matter whether there is any existing liability of the petitioner allegedly for which the cheque in question was issued being the subject matter of a title suit therefore, until the issue of liability is decided, the question of prosecuting the petitioner for non -payment of the cheque amount, in discharge of legally enforceable debt under section 138 of the N.I. Act is not permissible. c) The complaint has been lodged with a mala fide and ulterior motive to harass the petitioner. d) No specific statement or allegation has been made in the petition of complaint as to the commission of offence.
(2.) THE first two grounds being pure question of facts cannot at all be taken into consideration to decide the question of quashing and those are the matters to be adjudicated during the trial on evidence. So far as the third ground is concerned on the face of the provisions of section 139 of the N.I. Act that whenever a cheque is issued the court shall presume the same was issued in discharge of legally enforceable debt or liability, it is for the drawer of the cheque to establish in the trial of the offence punishable under section 138 of the N.I. Act to the contrary. Mere challenge in a title suit that there was no liability and therefore, cheque was not issued in discharge thereof, is of no help unless a competent court comes to such finding. Now going through the petition of complaint and the content thereof, I am unable to hold that on the face of those allegations no offence for which the petitioner is now being prosecuted is made out. This criminal revision has no merit and accordingly stands dismissed.
(3.) CRIMINAL Section is directed to deliver urgent xerox certified copy of this order to the parties, if applied for, as early as possible.;