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2021 (11) TMI 989 - HC - Indian LawsDishonor of Cheque - legally enforceable debt or not - pure and simple civil dispute or not - proceedings challenged primarily on the ground that the cheque, alleged to have been dishonored, was not issued by the petitioner in favour of the respondent for any legally enforceable debt - HELD THAT:- It is true that if the dispute has the contours of dispute of civil nature and does not constitute a criminal offence, this Court may be justified to quash the complaint or the criminal proceedings as the case may be, in the exercise of inherent power under Section 482 Cr.P.C. The criminal proceedings ought not to be permitted to degenerate into weapon of harassment. It is trite law that that the offence under Section 138 of N.I. Act is always committed in the course of civil transactions and if a cheque is given by the accused to the complainant in the discharge of his civil liability, which, of course, must be the legally enforceable debt or liability and same, if presented before the Bank, is returned unpaid by the Bank for insufficiency of funds or that it exceeds the amount arranged to be paid, the complainant may serve a notice upon the accused to make the payment within thirty days from the receipt of the said notice - the complaint filed by the respondent, if viewed in this context, does not lack the ingredients of the offence under Section 138 N.I. Act. In view of the clear provisions of Sections 138 and 139 of N.I. Act and the legal position on the point explained by the Hon’ble Supreme Court, there is hardly any reason to doubt the proposition that the probable defence of the accused in a complaint under Section 138 of N.I. Act, that the cheque issued by him which was later dishonored was not for any legally enforceable debt or liability, can be raised by the accused only at the stage of leading evidence and cannot be considered by the Magistrate at the threshold at the time of taking cognizance. It, however, remains to be seen that in a case where, from a plain reading of the complaint and the documents appended thereto, it clearly comes out that the cheque issued by the accused, as per own showings of the complainant, was not for discharge of any legally enforceable debt or other liability. Petition dismissed.
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