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2006 DIGILAW 1636 (AP)

TEJA SEEDS CORPORATION, WARANGAL v. NANDI SEEDS PVT. LTD. , MAHABUBNAGAR

2006-12-28

K.C.BHANU

body2006
( 1 ) THIS criminal revision case is filed against the order, dated 13-10-2006 passed in Crl. M. P. No. 1485 of 2006 in c. C. No. 504 of 2006 on the file of the Special judicial Magistrate of First Class for Trial of Cases Under Prohibition and Excise Acts, mahabubnagar. ( 2 ) IN spite of service of notice to the respondents, none appeared. ( 3 ) IT is seen from the allegations made in the complaint that the complainant got issued a notice to the accused on 19-10-2005 through registered post with acknowledgment due as well as under certificate of Posting, calling upon the accused to pay the cheque amount and on 24-10-2005 the accused received the same. On 10-11-2005, the accused got issued a reply and also sent an amount of rs. 1,00,000/- to the complainant by way of d. Ds towards payment of cheque in question. The complainant received the reply on 12-11-2005 and also the D. Ds. It is also stated that though the accused made the payment of Rs. 1,00,000/-, as the same was not made within 15 days from the date of receipt of statutory notice and the accused ought to make the payment by 8-11-2005 instead of paying on 12-11-2005, the complainant is having every right and cause of action to file the complaint. ( 4 ) THE learned Counsel for the petitioner relied on a decision of the Supreme court reported in Suman Sethi v. Ajay K. Churiwal, 2000 (1) ALD (Crl.) 550 (SC) = air 2000 SC 828 , wherein it is held that if the cheque amount is paid within the above period or before the complaint is filed, the legal liability under Section 138 will cease and for recovery of other demands as compensation, costs, interest, etc. , a civil proceeding will lie. ( 5 ) IN the present case, the cheque amount has been paid before the filing of the complaint and the complaint is filed on 6-12-2006. As seen from the allegations made in the complaint, the payment of rs. 1,00,000/- is made by the accused through a cheque bearing No. 502518, dated 8-8-2005 after the expiry of statutory period. As per the above decision of the Supreme Court in Suman Sethi v. Ajay K. Churiwal (supra), continuation of proceedings is nothing but abuse of process. As seen from the allegations made in the complaint, the payment of rs. 1,00,000/- is made by the accused through a cheque bearing No. 502518, dated 8-8-2005 after the expiry of statutory period. As per the above decision of the Supreme Court in Suman Sethi v. Ajay K. Churiwal (supra), continuation of proceedings is nothing but abuse of process. The trial Court dismissed the application on the sole ground that admittedly by 8-11-2005 the offence is complete in view of provisions under Section 138 (c) of Negotiable Instruments Act and the tender was made on 12-11-2005 after completion of offence and the question whether the accused offered to make payment by tendering the cheque amount prior to 8-11-2005 and other attending circumstances are disputed questions of fact, which can be gone into during the course of full length of trial. The trial Court also observed that at this stage, the petition to discharge the accused is not maintainable in view of the decision rendered by the Apex court in Adalath Prasad v. Rooplal jindhal, 2000 (2) ALD (Crl.) 855, wherein it was clearly held that the petition seeking discharge by the accused in summons case is not maintainable and the same view was expressed by this Court in Criminal Petition no. 4954 of 2002. ( 6 ) THERE is no doubt about the proposition laid down by the Apex Court, but inherent powers under Section 482 can be invoked when there is an abuse of process of Court. ( 7 ) HENCE, the proceedings are quashed. ( 8 ) THE criminal revision case is accordingly allowed. .