Telangana High Court
CRLP/922/2008 of Smt. Meera Kalva, Vs M/s Steel City Securities Ltd., on 31 December 2009
SRI JUSTICE K.C.BHANU CRIMINAL PETITION No.922 of 2008 ORDER: This petition is filed under Section 482 Cr.P.C. seeking to quash proceedings against petitioner/ A .2 in C.C.No.484 of 2007 on the file of I Additional Chief Metropolitan Magistrate, Visakhapatnam. 2. Heard the learned
THE HON’BLE SRI JUSTICE K.C.BHANU
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ORDER:
This petition is filed under Section 482 Cr.P.C. seeking to quashproceedings against petitioner/A.2 in C.C.No.484 of 2007 on the file ofI Additional Chief Metropolitan Magistrate, Visakhapatnam.
2. Heard the learned counsel for the petitioner, learned counsel forthe respondents and perused the record.
3. The first respondent herein filed a complaint against thepetitioner/A.2 and another before the learned Magistrate for theoffences under Sections 138 and 142 of Negotiable Instruments Act,1881 (for short ‘the Act’). According to the complainant, A.1 evincedinterest to act as Constituent of the complainant company and enteredinto an agreement on 15.11.2005 along with A.2, and in the course ofthe business transactions, the accused fell in arrears of Rs.95,375/-and in discharge of the same, A.2 issued a cheque dated 22.05.2006for Rs.1,50,000/- and when the cheque was presented for encashment,it was dishonoured with an endorsement “payment stopped by thedrawer”. It is further alleged that subsequently, A.1 came forward fornegotiations and as a token of settlement, A.1 issued cheque forRs.95,375/- vide cheque No.000645, dated 19.06.2006 drawn onLakshmi Vilas Bank Ltd, Warangal, in discharge of legally enforceabledebt of A.2 and when the complainant presented the cheque forencashment, again it was returned with an endorsement “fundsinsufficient” vide memo dated 31.07.2006. After issuing a statutorylegal notice dated 21.08.2006, complaint was filed. Learned Magistrate has taken cognizance of the complaint in C.C.No.484 of 2007 andissued process. Aggrieved by the same, the petitioner – A.2 filed thepresent petition.
4. The main contention of the learned counsel for the petitioner isthat she is not the drawer of the cheque and even according to theaverments in the complaint, it was only A.1, who issued the subjectcheque, which is said to have been dishonoured and therefore, theingredients of the offence under Section 138 of the Act are notattracted against the petitioner/A.2.
5. In support of his contention, the learned counsel relied upon adecision in BONTHAGORLA NAGA LAKSHMI v. YARASANI LINGAIAH
AND ANOTHER[[1]]wherein this Court held that where a person is not asignatory to the dishonoured cheque, such person cannot beproceeded against criminally.
In the above cited case also, it was A.1 therein, who gavecheque for Rs.30,000/- and the petitioner therein who was wife of A.1sought quashing of the proceedings against her on the ground that shewas not the drawer of the cheque. This Court held that the criminalliability cannot be fastened on the petitioner/A.2 therein for the offenceunder Section 138 of the Act inasmuch as the ingredients of Section138 of the Act are not attracted insofar as the petitioner therein isconcerned.
6. The case on hand also stands in similar set of circumstances asthe one in the decision referred to supra. Even according to thecomplainant, the subject cheque for Rs.95,375/- dated 19.06.2006 wasissued only by A.1 but not by A.2. The averment that the earlier cheque for Rs.1,50,000/- dated 22.05.2006 issued by A.2 was dishonouredand subsequently in pursuance of negotiations, the cheque in questionwas issued by A.1 does not enure to the benefit to the complainantinasmuch as the present case is filed only for dishonour of the chequedated 19.06.2006 which is said to have been issued only by A.1 andnot by A.2. Under these circumstances, no criminal liability can befastened on the petitioner/A.2 who is admittedly not the drawer of thesubject cheque.
7. Learned counsel for the first respondent/complainantcontended that besides the offence under Section 138 of the Act, therewere also trapping of offence under Section 420 IPC and theprosecution is maintainable in respect of the said offence. A perusal ofthe complaint would go to show that it was filed only for the offencesunder Sections 138 and 142 of the Act, but not under Section 420 IPC.Further, the averments of the complaint do not disclose any allegationspertaining to the offence under Section 420 IPC insofar as thepetitioner/A.2 is concerned. Therefore, the contention of the learnedcounsel for the first respondent/complainant that the offence underSection 420 IPC is attracted, is untenable.
8. In view of the foregoing discussion, further proceedings inC.C.No.484 of 2007 on the file of I Additional Chief MetropolitanMagistrate, Visakhapatnam, against the petitioner/A.2 are notsustainable and they are accordingly quashed.
9. In the result, the criminal petition is allowed.
31[st] DECEMBER, 2009.
_______________K.C.BHANU, J
kvni
[1]2006(2) ALT (Crl.) 155 (A.P.)