Research › Search › Judgment

Andhra High Court · body

2005 DIGILAW 334 (AP)

K. Manikyam v. P. Parvathi

2005-04-07

V.V.S.RAO

body2005
V. V. S. RAO, J. ( 1 ) THE petitioner is accused in cc No. 431 of 2002 on the file of the Court of VI Metropolitan Magistrate, Hyderabad. Learned Magistrate took cognizance of the case under Section 138 of the Negotiable instruments Act, 1881 (for short, the Act), as amended by Bank s Public Financial institutions and Negotiable Instruments Laws (Amendment) Act, 1988. In this petition, the petitioner seeks quashing of the said calendar case on the ground that no offence under Section 138 of the Act is disclosed in the complaint filed by first respondent on the file of the Court of vi Metropolitan Magistrate where CC no. 431 of 2002 is pending adjudication. ( 2 ) THE fact of the matter is this. The husband of first respondent and accused are friends. The accused requested husband of first respondent by name, Janardhana rao to join as a member of chit in M/s. Vishishta Finance and Chit Fund Co. Ltd. , warangal. Janardhana Rao joined in Chit no. VFCIP-IA/31 in October 1994 of the value of Rs. 2,00,000/- (Rupees two lakhs only) for a period of fifty months on monthly subscription of Rs. 4,000/- per month. He p. iid monthly subscription without committing any default and never bid in the auction in the prize chit. After completion of the chit period, Janardhan Rao issued a cheque on behalf of his wife and sons bearing No. 554230 dated 4-4-2002 towards part payment amount of Rs. 1,00,000/ -. The cheque was drawn on State Bank of India, hanmakonda Branch. The complainant presented the cheque to the bankers but the same was returned on 9-4-2002 for want of funds. Subsequently, on a request made by accused, the cheque was presented again on 30-4-2002 to Bank of Baroda, Tilaknagar, hyderabad, On 6-5-2002 the cheque was again returned with an endorsement "insufficient funds". The same was received by the complainant on 10-5-2002. In spite of issue of notice under Section 138 of the Act, the accused did not deposit the funds, but issued a reply dated 24-5-2002 denying the liability. Hence, the criminal case was filed. Learned VI Metropolitan Magistrate, Hyderabad, took cognizance of the case and issued summons to the petitioner/accused, aggrieved by which present petition under Section 482 of Code of Criminal Procedure, 1973 is filed. Hence, the criminal case was filed. Learned VI Metropolitan Magistrate, Hyderabad, took cognizance of the case and issued summons to the petitioner/accused, aggrieved by which present petition under Section 482 of Code of Criminal Procedure, 1973 is filed. ( 3 ) LEARNED Counsel for the petitioner, sri Vinod Kumar Dcshpande, contends that the cheque in realization of which offence is said to have been alleged is time barred cheque and therefore Section 138 of the Act is not attracted. Secondly, he would urge that cheque in question was allegedly on behalf of one Vijay Balarama Raju who promised to deposit the amount of Rs. 1,00,000 r. nd therefore the liability cannot be fastened on the petitioner. Lastly he would urge that there was no legally enforceable debt in discharge of which the cheque was giver and therefore the criminal case filed against petitioner is gross abuse of process of Court. ( 4 ) OPPOSING the application the learned Counsel for first respondent/ complainant Mr. T. Venkat Reddy submits that the chit business was run by sons and wife of petitioner in association with other partners, that the petitioner gave an undertaking to pay the chit amount and gave cheque on behalf of his wife and sons who are Directors of the above chit fund company for Rs. 1,00,000/- and when the petitioner has issued cheque to discharge debt, offence under Section 138 of the Act is attracted. He would further urge that whether the petitioner does not owe any liability or obligation to discharge the debut and whether Vijaya balarama Raju promised to deposit the amount and tailed to do so as a result of which the cheque was dishonoured are all matters which are questions of facts to be decided by Criminal Court. According to the learned Counsel, these matters cannot be decided in a petition under Section 482 of cr. PC for quashing. ( 5 ) IT is axiomatic that inherent powers of the High Court saved by Section 482 of cr. PC are unbounded and limitless. It is intended to prevent abuse of process of the court by those who invoke jurisdiction of the Criminal Courts. It is also intended to secure ends of justice. PC for quashing. ( 5 ) IT is axiomatic that inherent powers of the High Court saved by Section 482 of cr. PC are unbounded and limitless. It is intended to prevent abuse of process of the court by those who invoke jurisdiction of the Criminal Courts. It is also intended to secure ends of justice. If an order of quashing by the High Court fails to achieve these twin purposes, the jurisdiction cannot be exercised to quash a criminal case which prima facie disclosed the commission of offence. All other submissions by the accused by way of defence or by way of impeaching evidence produced by the complainant cannot be put in issue in a petition under Section 482 of cr. PC. It is now also well settled that mere allegation of malice on the part of the complainant or informant is no ground to quash the FIR/criminal case. ( 6 ) INSOFAR as the offence under Section 138 of the Act is concerned, the moment a person issues cheque in discharge of a debt or other liability to another person and in the event of such cheque being dishonoured for want of sufficient funds or the cheque exceeds the amount arranged to be paid, offence under Section 138 of the Act is attracted. The phrase ". . . for payment of any amount of money for another person. . . for the discharge, in whole or in part, of any debut or other liability. . . " must be given broad meaning. It not only speaks of "debt", but also "other liability". In this case, admittedly, the petitioner gave a cheque on behalf of his wife and sons, who arc Directors of chit fund company and therefore it has to be said that the cheque was issued to discharge "other liability". Non-deposit of funds by Vijaya Balarama Raju and said non-deposit being the reason for dishonour of the cheque is matter of agreement or understanding between drawer of the cheque and payee of the cheque which is matter of evidence, and cannot be subject-matter of petition under Section 482 of Cr. PC. Non-deposit of funds by Vijaya Balarama Raju and said non-deposit being the reason for dishonour of the cheque is matter of agreement or understanding between drawer of the cheque and payee of the cheque which is matter of evidence, and cannot be subject-matter of petition under Section 482 of Cr. PC. As held by the Supreme Court in S. A. Nanjundeswara v. Varlok Agrotech (P) Ltd. , (2002) 10 SCC 299, when the criminal complaint makes out an offence under Section 138 of the Act, it would not be proper for the High Court to quash criminal case under Section 138 of the Act. This Court also observes that in the facts and circumstances of this case whether the cheque was time barred and whether criminal case under Section 138 is maintainable in relation to a cheque which is time barred are all matters which the accused has to raise before Criminal Court. ( 7 ) IN M. M. T. C. Ltd. v. Medehl chemicals and Pharma (P) Ltd, 2002 (1) ald (Cri.) 585 (SC) = (2002) 1 SCC 234 , it was held that even where the complaint under Section 138 of the Act is presented to criminal Court any defects therein can be rectified at a subsequent stage and only on that ground the case cannot be quashed. The supreme Court also reiterated that inherent powers do not confer arbitrary jurisdiction on the Court to embark upon enquiry and as to the reliability or genuineness or otherwise of the allegations made in the criminal complaint. It was also laid down that power of quashing criminal proceedings should be exercised very sparing and with circumspection. ( 8 ) IN the result, for the above reasons, the criminal petition is devoid of merit and is accordingly dismissed.