THE HONOURABLE SRI JUSTICE K.SURENDER
CRIMINAL PETITION No.6379 of 2022
ORDER:
1. This Criminal Petition is filed to quash the proceedings against the petitioners/Accused in S.T.C.No.10019 of 2021 on the file of I Additional Junior Civil Judge-cum-I Additional Judicial Magistrate of First class, Miryalaguda.
2. The 2nd respondent filed complaint under Section 138 of Negotiable Instruments Act against these petitioners stating that the 2nd respondent invested an amount of Rs.46,50,000/- on the premise that 36% interest would be given. On demand by the 2nd respondent, the petitioners issued two cheques which were drawn on HDFC Bank for an amount of Rs.84.00 lakhs each. Cheque bearing No.000082 dated 04.01.2021 was issued on behalf of the A1 company signed by A2. Another personal cheque was given by A2 bearing No.000001, dated 11.01.2020 for Rs.84.00 lakhs. According to the complaint, the personal cheque was issued as surety to indemnify, if the company A1 failed to clear the due amount. A2 also executed indemnity bond to the complainant for Rs.84.00 lakhs. The company cheque was presented on 29.01.2021 and the same was returned unpaid for the reason of 'payment 2 stopped by drawer' and the 2nd personal cheque was also returned unpaid for the reason of 'insufficient funds'. A legal notice was sent and since payment was not made, the present complaint was filed.
3. Learned counsel for the petitioners would submit that the complaint cannot be filed on the basis of two cheques that were issued. Admittedly, there cannot be any legally enforceable debt in the circumstances when the cheque was issued to indemnify another cheque was issued. Further, the other Director of A1 company was not impleaded as an accused. He further argued that issuance of summons in a criminal case is a serious matter and the courts cannot summon an accused to undergo criminal trial without basis. In support of his contention, he relied on the judgment of Hon'ble Supreme Court in the case of Pooja Ravinder Devidasani v. State of Maharashtra1, wherein the Hon'ble Supreme Court held that putting the criminal law into motion is not a matter of course to settle the scores between the parties which are more in nature of civil dispute and courts cannot be mere spectators to it. Before a Magistrate taking cognizance of an offence making a person vicariously liable, the Court has to ensure 1 (2014) 16 Supreme Court Cases 1 3 strict compliance with the statutory requirement. He also relied on the judgment of Hon'ble Supreme Court in the case of Ashoke Mal Bafna v. Upper India Steel Manufacturing and Engineering Company Limited2 wherein similar view was taken regarding person being made vicariously liable and further held that the High Court under the inherent powers can show indulgence and quash the proceedings in such matters.
4. On the other hand, learned counsel for the 2nd respondent would submit that there is no ambiguity in the complaint and the cheque issued by the company and also the cheque issued in personal capacity were deposited. Since the cheques were dishonoured, complaint is filed.
5. In the complaint, it is specifically averred that there is an outstanding of Rs.84.00 lakhs towards the material supplied by the complainant. Since the cheque was issued by the company, the complainant has rightly prosecuted both the company and the signatory who is the 2nd petitioner. The complainant has narrated all the facts about issuance of two cheques and the transactions in between them. For the reason of giving personal cheque to indemnify any loss after giving first cheque by the company will not 2 (2018) 14 Supreme Court Cases 202 4 in any manner have bearing on the prosecution of the complaint for the dishonour of the cheque issued by the company. The signature on the cheques is not denied. In the said circumstances, presumption arises under section 139 of the Negotiable Instruments act and it is for the petitioners to produce their defence evidence or make out their case during the course of cross- examination of the complainant and other witnesses.
6. I do not find any infirmity in the private complaint under section 138 of the Negotiable Instruments act to prosecute the petitioners herein for the offence under Section 138 of the Negotiable Instruments Act.
7. Accordingly, the Criminal Petition is dismissed. Consequently, miscellaneous applications pending, if any, shall stand disposed.
__________________ K.SURENDER, J Date: 22.02.2023 kvs 5 THE HON'BLE SRI JUSTICE K.SURENDER CRIMINAL PETITION No.6379 of 2022 Dated 22.02.2023 kvs