Samalla Vijaya Lakshmi vs Chilukoti Joshna Devi
2023 Latest Caselaw 3044 AP

                HIGH COURT OF ANDHRA PRADESH

      MAIN CASE No: Crl.P.No.129 of 2023

                         PROCEEDINGS SHEET
SL.      DATE                      ORDER                                 OFFICE
NO.                                                                       NOTE
       11.05.2023   VJP, J

                          Heard Mr.Karri Suryanarayana, learned
                    counsel    representing   on     behalf   of   Mr.
                    Bomminayuni Apparao, learned counsel for
                    the petitioner and learned Public Prosecutor
                    representing respondent No.2.

The record shows, notice though served on the respondent No.1 were compiled, they do not choose to appear before this Court to submit their objections if any on this petition. This petition is filed seeking stay of the proceedings in C.C.No.4712 of 21 which is pending on the file of the II Special Magistrate Court, Visakhapatnam, pending disposal of the quash petition. Learned counsel for the petitioner submit that in the light of the Judgment of the Hon‟ble Apex Court in Crl.P.No.1497 of 2022 dated 11.10.2022 the complaint has no legs to stand. The learned Magistrate is proceeding further in the case basing on the complaint which is not maintainable under law. Learned counsel, draw the attention of this Court to Para SL. DATE ORDER OFFICE NO. NOTE Nos.29 and 30 which reads as follows:

"29.Under Section 56 read with Section 15 of the Act, an endorsement may be made by recording the part-payment of the debt in the cheque or in a note 12(2008) KLJ 784 13 ILR (2010) III Delhi 459 14[2018(2) GLH 105] appended to the cheque. When such an endorsement is made, the instrument could still be used to negotiate the balance amount. If the endorsed cheque when presented for encashment of the balance amount is dishonoured, then the drawee can take recourse to the provisions of Section 138. Thus, when a part-payment of the debt is made after the cheque was drawn but before the cheque is encashed, such payment must be endorsed on the cheque under Section 56 of the Act. The cheque cannot be presented for encashment without recording the part- payment. If the unendorsed cheque is dishonoured on presentation, the offence under section 138 would not be attracted since the cheque does not represent a legally enforceable debt at the time encashment.

30. In view of the discussion above, we summarise our finds below:

(i) For the commission of an offence under Section 138, the Cheque that is dishonoured must represent a leagally enforceable debt on the date of maturity or presentation;

(ii) If the drawer of the cheque pays a part or whole of the sum between the period when the cheque is drawn and when it is encashed upon maturity, then the legally enforceable debt on the date of maturity would not be the sum represented on the cheque;

(iii) When a part or whole of the sum represented on the cheque is paid by the drawer of the cheque, it must be endorsed on the cheque as prescribed in Section 56 of the Act. The cheque endorsed with the payment made may be SL. DATE ORDER OFFICE NO. NOTE used to negotiate the balance, if any. If the cheque that is endorsed is dishonoured when it is sought to be encashed upon maturity, then the offence under Section 138 will stand attracted;

(iv) The first respondent has made part-

payments after the debt was incurred and before the cheque was encashed upon maturity. The sum of rupees twenty lakhs represented on the cheque was not the „legal enforceable debt‟ on the date of maturity. Thus, the first respondent cannot be deemed to have committed an offence under Section 138 of the Act when the cheque was dishonoured for insufficient funds; and

(v) The notice demanding the payment of the „said amount of money‟ has been interpreted by judgments of this Court tomean the cheque amount. The conditions stipulated in the provisos toSection 138 need to be fulfilled in addition to the ingredients in the substantive part of Section."

As seen from the averments of the complaint the cheque alleged to have been issued in favour of the complainant towards the part-payment of the debt due under the promissory note.

In the light of the authority referred supra the learned counsel would submit that the complaint itself is not maintainable. The cheque as well as the promissory note filed along with the petition to show that no such endorsements were made on those documents.

Learned Public Prosecutor would submit SL. DATE ORDER OFFICE NO. NOTE that there is no urgency, the matter may be adjourned. Learned counsel for the petitioner would submit that the learned Magistrate is proceeding with the matter the relief become infructuous if the stay is not granted, and prays to grant stay for a limited period of time.

In the light of aforementioned premises there shall be an interim stay for a period of five (05) weeks.

Post the matter on 14.06.2023 __________ VJP,J

Note: C.C. by 11.05.2023.

             (B/O)

             SRT
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NO.                   NOTE
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