- (1.) A proceeding under section 138 of the N.I. Act, now pending before the Metropolitan Magistrate, 4th Court, Calcutta is sought to be quashed by moving this criminal revisional application. The grounds on which the quashing has been sought for are as follows: a) It would be evident from the documents annexed with this criminal revisional application that there is a clear suppression of facts. b) Already a suit for a declaration that the sale deed which is the subject matter of the said suit is invalid, is pending before a competent court, therefore no cheque issued in connection with the said sale transaction cannot be said to have issued in discharge of any legally enforceable debt or liability. c) The allegations made in the complaint is out and out false and the aforesaid criminal proceeding has been instituted 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.) NO quashing of a criminal proceeding is legally permissible on the basis of the annexures to the application for quashing before the content of such annexures is proved in trial on evidence. The suppression of fact and the allegations are false, are essentially the defence of the accused and disputed question of facts, consequently same also cannot be taken into consideration to decide the question of quashing. The only other ground that a suit for declaration that a sale deed in connection with the cheque in question was issued is pending is no ground on the face of the provisions of section 139 of the N.I. Act, without a definite finding of a competent court that such cheque was not issued in discharge of any legally enforceable debt or liability.
(3.) THIS criminal revision has no merit and accordingly stands dismissed. Criminal Section is directed to deliver urgent xerox certified copy of this order to the parties, if applied for, as early as possible.;