HIGH COURT FOR THE STATE OF TELANGANA
AT HYDERABAD
*****
Criminal Petition No.3492 OF 2022
Between:
D.S Shridhar ... Petitioner
And
P. John & Another ... Respondents
DATE OF JUDGMENT PRONOUNCED: 13.12.2022
Submitted for approval.
THE HON'BLE SRI JUSTICE K.SURENDER
1 Whether Reporters of Local
newspapers may be allowed to Yes/No
see the Judgments?
2 Whether the copies of judgment
may be marked to Law Yes/No
Reporters/Journals
3 Whether Their
Ladyship/Lordship wish to see Yes/No
the fair copy of the Judgment?
_________________
K.SURENDER, J
2
* THE HON'BLE SRI JUSTICE K. SURENDER
+ CRL.P. No. 3492 of 2022
% Dated 13.12.2022
# D.S Shridhar ... Petitioner
And
$ P. John & Another ... Respondents
! Counsel for the Petitioner: Sri. Gujjari. Naveen Kumar
^ Counsel for the Respondents: Sri P.Santosh Kumar Goud
for R1
Sri S.Sudershan,
Addl. Public Prosecutor for
R2
>HEAD NOTE:
? Cases referred
3
THE HONOURABLE SRI JUSTICE K.SURENDER
Criminal Petition No.3492 of 2022
ORDER:
1. Petitioner is questioning the complaint filed under Section 138 of the Negotiable Instruments Act mainly on the ground that the reasons given by the banker while returning the cheque does not confirm to the twin reasons assigned under Section 138 of the Negotiable Instruments Act for prosecuting a drawer of the cheque.
2. The case of the complainant is that the complainant took hand loan of Rs.30.00 lakhs on 05.07.2018 in the house of the complainant in the presence of witnesses. A cheque was also issued on the very same day for Rs.30.00 lakhs. The said cheque was presented for clearance and the same was returned unpaid on 17.07.2018 for the reason of 'kindly contact drawer/drawee bank and present again'. Again the said cheque was presented for clearance, which was returned on 16.08.2018 for the reason of 'kindly contact drawer/drawee bank and please present again'.
3. Under Section 138 of the Negotiable Instruments Act, prosecution can be launched if the cheque is returned unpaid 4 for the reason of 'insufficient funds' or 'it exceeds arrangement to be paid'. The Hon'ble Supreme Court held that apart from two reasons, if the reasons are 'account closed' and 'payment stopped' by the drawer' are also liable under Section 138 of the Negotiable Instruments Act.
4. As seen from the cheque, it was printed in the year 2008. The Bank has returned the cheque by specifically mentioning reason of 'kindly contact drawer/drawee bank and please present again' which is in the handwriting of the banker stating that drawer or drawee bank has to be contacted and then present the cheque.
5. As stated in the complaint, the question of returning the cheque for 'insufficient funds' does not arise. As seen from the cheque return memo, the reason of 'funds insufficient' is number 6. The Bank has returned twice for the reason 19 stating 'kindly contact drawer/drawee bank and please present again' which was handwritten. When the reason for returning the cheque does not conform to the twin requirements mentioned under Section 138 of the Negotiable Instruments Act or if the account is closed and payment stopped by drawer as stated by the Hon'ble Supreme Court, 5 the reason mentioned by the Banker to contact the drawer or drawee bank and present again will not amount to a reason for which, the prosecution under Section 138 of the Negotiable Instruments Act can be launched.
6. If the complainant is aggrieved and in the facts of the case if an offence of cheating as defined under Section 415 of IPC is made out, complainant is at liberty to prosecute accordingly. Since there are no ingredients to launch prosecution under Section 138 of the Negotiable Instruments Act, the proceedings against the petitioner are liable to be quashed.
7. In the result, the proceedings against the petitioner in CC No.287 of 2018 on the file of Judicial First Class Magistrate at Zaheerabad, are hereby quashed.
8. Accordingly, the Criminal Petition is allowed. Miscellaneous applications, pending if any, shall stand closed.
_________________ K.SURENDER, J Date: 13.12.2022 Note: LR copy to be marked.
B/o.kvs 6 THE HON'BLE SRI JUSTICE K.SURENDER Criminal Petition No.3492 of 2022 Date: 13.12.2022 kvs