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Andhra High Court · body

2014 DIGILAW 796 (AP)

Jasti Jayalaxmi v. State of A. P.

2014-07-01

S.RAVI KUMAR

body2014
ORDER 1. This is a petition to quash proceedings in C.C.No.167 of 2007 on the file of I Additional Metropolitan Magistrate, City Criminal Courts, at Hyderabad. 2. Brief facts leading to this criminal petition are as follows: The second respondent herein filed complaint before the Magistrate alleging that the cheque issued by A2 for Rs.1,70,266 drawn on Syndicate Bank, Mulukuduru Branch, Guntur District, was dishonoured due to insufficiency of funds and that the accused has committed offence under Section 138 of the Negotiable Instruments Act (for short, the NI Act). The petitioner herein is shown as A3 and she was referred as associate person in the complaint. The main contention of the petitioner is that no case was made out against her under Section 138 of the NI Act and that she is no way connected with the purchase of goods by A1 and A2 and issue of cheque. 3. Advocate for the petitioner submitted that when there are no allegations in the complaint against the petitioner attributing anything with reference to the transaction or issue of cheque except naming her as accused and showing her as associate person, the proceedings against her have to be quashed. He further submitted that in a similar set of facts this Court in Crl.P.No.3313 of 2012 is pleased to quash proceedings against the same petitioner on a complaint filed by the very same person. 4. On the other hand, advocate for second respondent submitted that para 5 of the complaint would clearly disclose the role of petitioner herein and there are specific allegations against her and therefore the objection of the advocate for petitioner is not tenable. He further submitted that as per the document filed along with the counter affidavit, the petitioner is shown under the caption name of the persons dealing and in another agreement she is shown in the column name of the partner relating to the first accused, therefore, she is liable for the cheque amount and these aspects have to be examined during trial. He submitted Honble Supreme Court in a recent decision in HARYANA STATE COOPERATIVE SUPPLY AND MARKETING FEDERATION LIMITED v. JAYAM TEXTILES AND ANOTHER observed procedural defects and irregularities, which are curable, should not be allowed to defeat substantive rights or to cause injustice. He submitted Honble Supreme Court in a recent decision in HARYANA STATE COOPERATIVE SUPPLY AND MARKETING FEDERATION LIMITED v. JAYAM TEXTILES AND ANOTHER observed procedural defects and irregularities, which are curable, should not be allowed to defeat substantive rights or to cause injustice. Procedure, a handmaiden to justice, should never be made a tool to deny justice or perpetuate injustice, by any oppressive or punitive use. 5. Advocate for second respondent also contended that Section 141 of the NI Act clearly define association of individuals and the petitioner who is shown as associate person would clearly fall under the provisions of Section 141 of the NI Act. For this proposition he cited a ruling of the High Court of Bombay, at Aurangabad, in a decision in DADASAHED RAWAL COOPERATIVE BANK OF DONDAICHA LTD., THROUGH ITS HOLDER OF POWER OF ATTORNEY SHRI JINTENDRASING ROOPSING GIRASE v. RAMESH S/O JAWRILAL JAIN, SMT. SUSHILA S/O RAMESH JAIN AND THE STATE OF MAHARASHTRA. He submitted that the petitioner is to be treated as an agent of A1 and A2 and in that capacity also she is liable for the transaction and for this proposition he relied on a ruling of this Court decided in Crl.P.Nos. 10231, 10232, 10300 and 10301 of 2013 dated 23.06.2014. 6. I have gone through the material papers filed along with the petition and also the counter affidavit and also the documents filed along with the counter affidavit. As seen from the complaint this petitioner is referred as associate person and except naming her no specific allegations or averments are made against her. A careful reading of the allegations in para 5 of the complaint, I am unable to accept the submission of the advocate for second respondent because the word used is accused person and all the averments refer to the person who issued the cheque. No doubt in the last lines of the para, it is mentioned that A1, A2 and A3 returned the registered notice, but nothing is referred in the above sentences about the role of A1 or A3. So the contention that this para refers to A3 also cannot be accepted. Now coming to contention that procedural defects cannot be countenanced, in this case, there are no procedural defects, on the other hand it is a defect in pleading and placing sufficient material. So the contention that this para refers to A3 also cannot be accepted. Now coming to contention that procedural defects cannot be countenanced, in this case, there are no procedural defects, on the other hand it is a defect in pleading and placing sufficient material. There is absolutely no reference in the complaint about the role of the petitioner. As seen from the documents filed along with the counter affidavit the petitioner is aware of the fact that the petitioner name was referred in two agreements one in the capacity of partner and in the other as a dealing person. In spite of that nothing is pleaded and nothing is mentioned about the petitioner in the complaint. It is not a case where all the facts are pleaded but the party forgot to file the documents. On the other hand, it is otherway that the complainant has all the papers with him and has every knowledge about the role of each accused, but for the reasons best known to the complainant, nothing is stated in the complaint against the petitioner except mentioning her name and referring her as associate person. 7. Admittedly, the cheque was given by A2 and it is not signed by A3. As already referred above, there is no allegation whatsoever in the complaint as to the role of the petitioner and her connection with the firm in day to day affairs. When there is no material against the petitioner concerning the bounced cheque, continuing proceedings against her would amount to abuse of process of Court. Therefore, exercising powers under Section 482 Cr.P.C., the same have to be quashed. 8. For these reasons, the criminal petition is allowed, and the proceedings against the petitioner in C.C.No.167 of 2007 are hereby quashed and since the C.C. is of the year 2007, I feel that the trial Court has to be directed to expedite the trial. Therefore, the trial Court is directed to take up the trial and dispose it of as expeditiously as possible in accordance with law, preferably within a period of six months from the date of receipt of this order.