- (1.) THIS an application for quashing of a proceeding under section 138 of the N.I. Act, now pending before the Metropolitan Magistrate, 4th Court, Calcutta. It is the contention of the learned advocate of the petitioner that the aforesaid proceeding ought to be quashed for the following reasons: a) The documents annexed with this criminal revisional application would show that there is clear suppression of facts. b) A title suit for a declaration that the sale deed which is the subject matter of the said suit is invalid, is still pending for adjudication before a competent court of law, therefore the cheque issued in connection with the same 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.) QUASHING of a criminal proceeding on the basis of the annexure is not at all permissible which is the law consistently and authoritatively held by the Apex Court.
(3.) 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. This criminal revision has no merit and accordingly stands dismissed.;