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2022 DIGILAW 969 (AP)

Maata Rani v. Jangala Anil Kumar

2022-09-30

NINALA JAYASURYA

body2022
JUDGMENT Ninala Jayasurya, J. - Heard Mr.P.Prabhakara Rao, learned counsel for the petitioner. Also heard learned Assistant Public Prosecutor for the 2nd respondent-State and Mr.Somisetty Ganesh Babu for the 1st respondent/de facto complainant. 2. The present Criminal Petition is filed seeking to quash the F.I.R.No.245 of 2020 on the file of the Nagarjuna Sagar Police Station, Guntur District, which is registered against the petitioner for the offences punishable under Ss. 379 and 420 of IPC. The 1st respondent lodged the said complaint, inter alia, stating that he filed a complaint on 4/8/2020 in the Nagarjuna Sagar Police Station that his Pass Book and Blank Cheques of State Bank of India, Brodipet, Guntur were missing, and that he obtained a certificate to that effect. Further, on receipt of a legal notice dtd. 10/12/2020, wherein it was intimated that a cheque was bounced and on verification of the cheque number, he noticed that it is one of the missing cheques. It is also alleged in the legal notice sent on behalf of the petitioner herein that he had obtained a loan of Rs.5, 00, 000.00 from the petitioner in the presence of one Istavath Hanuma Naik and Desavath Lakshma Naik and the said cheque was issued in respect of the loan transaction. He requested the Police to take action in this regard on the persons, who have stolen the cheque for the purpose of receiving money through the said cheque. 3. The learned counsel for the petitioner, inter alia, submits that the said complaint was lodged by the 1st respondent as a counter-blast to the case filed under Sec. 138 of the Negotiable Instrument Act and the very fact of lodging the complaint on receipt of statutory notice got issued by the petitioner would make it crystal clear that the 1st respondent is trying to escape from his liability and prevent the petitioner from pursuing the remedies under the provisions of the Negotiable Instruments Act. He submits that filing of criminal case with a malafide intention amounts to abuse of process of Law and the same cannot be permitted. The learned counsel also submits that the 1st respondent/de facto complainant being a Motor Vehicle Inspector with his influence obtained a certificate with regard to alleged missing of cheques only with a view to get over the proceedings under the Negotiable Instruments Act. The learned counsel also submits that the 1st respondent/de facto complainant being a Motor Vehicle Inspector with his influence obtained a certificate with regard to alleged missing of cheques only with a view to get over the proceedings under the Negotiable Instruments Act. While drawing the attention of this Court to the complaint, he submits that there is no allegation that the cheques were unsigned, that blank cheques were lost and further that in the case of signed cheques statutory presumption would lend support to the case of the petitioner that the cheque was issued in discharge of a debt. The learned counsel further submits that registration of crime against the petitioner under Ss. 379 and 420 of IPC is not sustainable, in as much as, no ingredients of the said offences are attracted in the facts of the present case. Making the said submissions and relying on the decisions of the Hon'ble Supreme Court in Mahindra and Mahindra Financial Service Ltd., vs. Rajiv Dubey 2009 (1) SCC 706 , Ashok Kumar Gupta vs. State of U.P., and Another 2016 LawSuit (SC)1476 and Vineet Kumar and Others vs. State of Uttar Pradesh and another (2017) 13 Supreme Court Cases 369 the learned counsel seeks to quash the F.I.R registered against the petitioner. 4. The learned Assistant Public Prosecutor appearing for the 2nd respondent justified the registration of F.I.R against the petitioner for the alleged offences punishable under Ss. 379 and 420 of IPC. He contends that the investigation is in progress and at this stage interference is warranted, as there is no abuse of process of Law. The learned counsel for the 1st respondent/de facto complainant submits that the complaint about missing cheques with specific details was lodged on 4/8/2020 through online as per the prescribed procedure, that Nagarjuna Sagar Police duly issued a certificate on 22/8/2020 in that regard and in such circumstances, the allegation of the 1st respondent/defacto complainant using his influence, is based on mere presumptions. The learned counsel also submits that the 1st respondent only on receipt of legal notice made the present complaint against the petitioner, as prior to that he was only under the impression that the cheques were missing. The learned counsel also submits that the 1st respondent only on receipt of legal notice made the present complaint against the petitioner, as prior to that he was only under the impression that the cheques were missing. He also submits that the case on hand cannot be treated as a counter-blast to avoid the proceedings under Sec. 138 of the Negotiable Instruments Act, in as much as the complaint with regard to missing of cheques was made on 4/8/2020 before issuing the statutory notice under Sec. 138 of the Negotiable Instruments Act on 9/12/2020. He also submits that the allegations as made by the 1st respondent have to be investigated by the Police and to pre-empt the Police from conducting investigation, the petitioner filed the present quash petition. The learned counsel also draws the attention of this Court to the docket proceedings in C.C.No.539 of 2018 on the file of the Court of the Additional Junior Civil Judge-cum-Judicial Magistrate of First Class, Macherla, wherein the petitioner is arrayed as Accused No.1, which is registered for the offence punishable under Sec. 324 R/w Sec. 34 of IPC. Making the said submissions, the learned counsel urges that the Criminal Petition may be dismissed. 5. This Court has considered the submissions made by the learned counsel appearing for the respective parties. The first and foremost contention advanced by the learned counsel for the petitioner is that the 1st respondent filed the F.I.R in question, as a counter-blast to the proceedings initiated by the petitioner, merits no acceptance for two reasons. Firstly the 1st respondent lodged a complaint with regard to missing of cheques on 4/8/2020 by making an appropriate application through online, which is not disputed and it cannot be presumed that the complaint was lodged by making use of the 1st respondent's position as Motor Vehicle Inspector. Nextly, when a complaint was lodged by giving the cheque numbers on 4/8/2020, as certified by the Nagarjuna Sagar Police dtd. 22/8/2020, the question of the 1st respondent giving a cheque bearing No.381324 for Rs.5, 00, 000.00 on 1/10/2020 appears to be improbable. However, these are the matters for investigation and Trial. 6. Though the learned counsel for the petitioner also contended that no ingredients attracting the offences punishable under Ss. 22/8/2020, the question of the 1st respondent giving a cheque bearing No.381324 for Rs.5, 00, 000.00 on 1/10/2020 appears to be improbable. However, these are the matters for investigation and Trial. 6. Though the learned counsel for the petitioner also contended that no ingredients attracting the offences punishable under Ss. 379 and 420 of IPC are attracted, as the matter is at the investigation stage, this Court is not inclined to examine the said aspect, more particularly, in the light of the material on record filed by the learned counsel for the 1st respondent. In so far as the decision relied on by the learned counsel for the petitioner in Mahindra and Mahindra, the Hon'ble Supreme Court was dealing with an appeal against the Judgment of the Orissa High Court declining to interfere with the order passed by the Magistrate taking cognizance of the offences punishable under Ss. 406 and 420 of IPC. In the said case, it was inter alia pleaded that in order to preempt the proceedings under Sec. 138 of the Negotiable Instruments Act, the respondent lodged a criminal complaint against the appellants under Ss. 406, 420, 294, 506 R/w Sec. 34 of IPC. It was also pleaded that the ingredients of Sec. 405 of IPC are not present and the complaint was mala fide. The Hon'ble Supreme Court, inter alia, opining that the complaint was apparently made with ulterior motive, applying the guidelines as set out in State of Haryana vs. Bhajan Lal AIR 1992 SC 604 allowed the appeal by quashing the proceedings before the Magistrate. 7. Ashok Kumar Gupta is also on similar lines, wherein the Hon'ble Supreme Court while observing that in quash proceedings, the Court could not go into the disputed version, in the attending facts and circumstances of the case held that the proceedings initiated after issuance of notice of dishonor of cheque are clear abuse of process of Law. 8. In Vineet Kumar and Others, the Hon'ble Supreme Court, inter alia, examined the scope of powers of the High Court under Sec. 482 Cr.P.C and quashed the criminal proceedings, inter alia, holding as follows:- "Inherent power given to the High Court under Sec. 482 Cr.P.C. is with the purpose and object of advancement of justice. 8. In Vineet Kumar and Others, the Hon'ble Supreme Court, inter alia, examined the scope of powers of the High Court under Sec. 482 Cr.P.C and quashed the criminal proceedings, inter alia, holding as follows:- "Inherent power given to the High Court under Sec. 482 Cr.P.C. is with the purpose and object of advancement of justice. In case solemn process of Court is sought to be abused by a person with some oblique motive, the Court has to thwart the attempt at the very threshold. The Court cannot permit a prosecution to go on if the case falls in one of the Categories as illustratively enumerated by this Court in State of Haryana vs. Bhajan Lal. Judicial process is a solemn proceeding which cannot be allowed to be converted into an instrument of operation or harassment. When there are materials to indicate that a criminal proceeding is manifestly attended with mala fide and proceeding is maliciously instituted with an ulterior motive, the High Court will not hesitate in exercise of its jurisdiction under Sec. 482 Cr.P.C. to quash the proceeding under Category 7 as enumerated in State of Haryana vs.Bhajan Lal, which is to the following effect: "102. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge." However, this Court is of the opinion that the above decisions of the Hon'ble Supreme Court are not applicable to the facts of the case on hand. 9. In a recent decision in Pareshbhai Amrutlal Patel and Others vs. State of Gujarat and Another (2020) 12 Supreme Court Cases 569 in similar facts and circumstances, the Hon'ble Supreme Court at Para No.8 held as follows:- "8. The complaint filed by the appellants under Sec. 138 of the NI Act is earlier in point of time. The complaint filed by Respondent 2 is more than two years later. The complaint filed by the appellants under Sec. 138 of the NI Act is earlier in point of time. The complaint filed by Respondent 2 is more than two years later. Since the issue in both the cases revolves around the same cheque, therefore, we find that instead of quashing FIR No.3 of 2007, the ends of justice would meet if proceedings arising out of FIR No.3 of 2007 are transferred to the Court of Judicial Magistrate, Surat, where the proceedings of other complaint under Sec. 138 of the NI Act are pending so that the complaint filed by the appellants and the proceedings arising out of FIR alleged by Respondent 2 are decided together to avoid contradictory judgments and to facilitate the issues which are common in both." 10. In the light of the above decision of the Hon'ble Supreme Court, this Court deems it appropriate to dispose of the present Criminal Petition providing that the proceedings arising out of F.I.R.No.245 of 2020 on the file of the Nagarjuna Sagar Police Station, Guntur District, shall be tried by the same Court along with the proceedings, if any, instituted under Sec. 138 of the Negotiable Instruments Act and shall be decided together. 11. With the above direction, this Criminal Petition is disposed of. As a sequel, miscellaneous applications if any, pending shall stand closed.