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2024 DIGILAW 1513 (AP)

Ganta Kavitha Devi v. State of Andhra Pradesh

2024-10-25

VENKATA JYOTHIRMAI PRATAPA

body2024
JUDGMENT / ORDER : The instant petition under Section 482 of Code of Criminal Procedure, 1973 (for short 'Cr.P.C.'), has been filed by the petitioner/accused, seeking to quash the proceedings against her in CC No.911 of 2022 on the file of the Court of II Additional Metropolitan Magistrate, Vijayawada, for the offence punishable under Section 138 read with 142 of the Negotiable Instruments Act, 1881 (for short 'N.I. Act'). 2. The facts which led to the filing of this petition, in brief, are as follows : (a) On 20.11.2018, petitioner/accused borrowed a sum of Rs.25,00,000/- from respondent No.2/complainant for her family and other expenses and executed a promissory note in his favour on the same day agreeing to repay the same with interest @ 24% per annum. (b) On repeated demands of the complainant, the accused issued a Cheque Bearing No.032824, dated 20.09.2021 for Rs.42,00,000/- drawn on State Bank of Hyderabad, Mahabubabad Branch, Warangal District and on presentation for collection in ICICI Bank, Vijayawada, the said cheque was returned with an endorsement "Invalid Cheque (SBH)" under a return memo dated 22.09.2021. (c) On 30.09.2021, the complainant got issued a legal notice to the accused and having received the same, the accused issued a reply dated 07.10.2021 requesting to send the attested copies of the promissory note and cheque. In compliance of the same, the complainant got issued a rejoinder dated 16.10.2021 and on receipt of the rejoinder, the accused got issued a reply dated 19.10.2021 with false and frivolous allegations and did not pay any amount to the complainant. As such, the complainant filed a private complaint, which was numbered as CC No.911 of 2022. (d) Aggrieved thereby, petitioner/accused filed the present petition for quashment of the case against him. Hence the Crl.P. Arguments Advanced at the Bar 3. Heard Sri Varun Byreddy, learned Counsel for the petitioner. Though notice was sent to respondent No.2, the same was returned and none appeared on his behalf. 4. Learned Counsel for the petitioner/accused would submit that the subject cheque dated 20.09.2021 was issued from State Bank of Hyderabad, which was merged with State Bank of India w.e.f., on 01.04.2017 and hence, the same is invalid. Though notice was sent to respondent No.2, the same was returned and none appeared on his behalf. 4. Learned Counsel for the petitioner/accused would submit that the subject cheque dated 20.09.2021 was issued from State Bank of Hyderabad, which was merged with State Bank of India w.e.f., on 01.04.2017 and hence, the same is invalid. Learned Counsel would further submit that the subject cheque is valid upto Rs.10 lakhs and when a cheque has no negotiability beyond the said amount, it is improbable to say that the same was issued towards payment of legally enforceable debt. Learned Counsel would further submit that the ingredients of Section 138 of N.I. Act do not attract to the present case. In support of his contention, learned Counsel has placed reliance on the judgment of the High Court of Delhi in Premanand Prusty v. Sita Devi, 2023 SCC OnLine Del. 7745 and Allahabad High Court in Archana Singh Gautam v. State of U.P. and another, Application No.9536 of 2024, dated 05.06.2024. 5. Now the point that would emerge for determination is : Whether there are any justifiable grounds for quashment of the proceedings against the petitioner/accused in CC No.911 of 2022 on the file of the Court of II Additional Metropolitan Magistrate, Vijayawada, for the offence punishable under Section 138 read with 142 of Negotiable Instruments Act? 6. A bare perusal of Section 482 makes it clear that the Code envisages that inherent powers of the High Court are not limited or affected so as to make orders as may be necessary; (i) to give effect to any order under the Code or, (ii) to prevent abuse of the process of any Court or, otherwise (iii) to secure ends of justice. A Court while sitting in Section 482 jurisdiction is not functioning as a Court of appeal or a Court of revision. It must exercise its powers to do real and substantial justice, depending on the facts and circumstances of the case. These powers must be invoked for compelling reasons of abuse of process of law or glaring injustice, which are against sound principles of criminal jurisprudence. 7. It must exercise its powers to do real and substantial justice, depending on the facts and circumstances of the case. These powers must be invoked for compelling reasons of abuse of process of law or glaring injustice, which are against sound principles of criminal jurisprudence. 7. In the case on hand, it is the contention of the petitioner/accused that the subject cheque was drawn on State Bank of Hyderabad, whereas, State Bank of Hyderabad was merged with State Bank of India w.e.f., 01.04.2017 and the cheques of State Bank of Hyderabad were valid till 31.03.2018 and from 01.04.2018, the cheques of said Bank became invalid. Since the subject cheque was given on 20.09.2021, the same is invalid. As such, it cannot be said that the petitioner had issued a negotiable instrument and therefore, the ingredients of Section 138 of N.I. Act do not attract to the present case. 8. At this stage, it is beneficial to extract Section 138(a) of N.I. Act, which reads as follows : "138. Dishonour of cheque for insufficiency, etc., of funds in the account.-Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may be extended to two years', or with fine which may extend to twice the amount of the cheque, or with both : Provided that nothing contained in this section shall apply unless- (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier." 9. From the perusal of above provision, it is clear that if any invalid cheque is presented before the Bank and the same is dishonoured, it can be said that there is no liability under Section 138 of N.I. Act. 10. In Archana Singh Gautam's case (supra), it was held as under : ".......So far as the judgment of the Delhi High Court in Sri Premanand Prusty v. Sita Devi, 2023 SCC OnLine Del. 7745, relied upon the Counsel for the opposite party No.2 is concerned, this Court is of the view that this judgment has not been correctly decided. 11. In view of the above analysis, the cheque in question, which was issued from the account maintained in erstwhile Allahabad Bank after its merger with Indian Bank, was not the valid cheque on the date of presentation before the Indian Bank as required by proviso (a) of Section 138 of N.I. Act; therefore, dishonouring the same will not attract the liability under Section 138 N.I. Act. 12. This Court is also of the view that the above analogy will also be applicable to the cheques of all banks which had merged with other banks. 13. Therefore, the present application is allowed and the proceeding of Brajesh Kumar Singh v. Smt. Archana Singh Gautam and others, Complaint Case No.712 of 2023, under Section 138 N.I. Act, pending in the Court of learned Special Judicial Magistrate-II, Banda, is hereby quashed." 11. Admittedly, in the instant case, the subject cheque was issued on 20.09.2021 and the same was drawn on State Bank of Hyderabad. By that date, State Bank of Hyderabad was merged with State Bank of India and the cheques of the said bank were valid till 31.03.2018 only. As per the proviso (a) of Section 138 of N.I. Act, if the cheque itself is invalid, the Bank is bound to dishonour the same. As such, on presentation of the said cheque before ICICI Bank, the same was returned on 22.09.2021 with an endorsement "Invalid cheque (SBH)". Therefore, it can be presumed that the cheque in question was invalid on the date of presentation before the ICICI Bank. 12. As such, on presentation of the said cheque before ICICI Bank, the same was returned on 22.09.2021 with an endorsement "Invalid cheque (SBH)". Therefore, it can be presumed that the cheque in question was invalid on the date of presentation before the ICICI Bank. 12. In view of the above discussions, the subject cheque, which was issued from the account maintained in erstwhile State Bank of Hyderabad after its merger with State Bank of India, was not a valid cheque on the date of its presentation before the ICICI Bank as required by proviso (a) of Section 138 of N.I. Act. Hence, dishonouring the same will not attract the liability under Section 138 of N.I. Act. Therefore, this Court is of the view that, it is a fit case to exercise the jurisdiction under Section 482 Cr.P.C., for quashing the proceedings against the petitioner. 13. Resultantly, the criminal petition is allowed and the proceedings against the petitioner in CC No.911 of 2022 on the file of the Court of II Additional Metropolitan Magistrate, Vijayawada, for the offence punishable under Section 138 read with 142 of the Negotiable Instruments Act, 1881, are hereby quashed. 14. Pending miscellaneous petitions, if any, shall stand closed.