Telangana High Court
K. Venkateshwarlu vs The State Of Telangana, on 1 July, 2024
THE HONOURABLE SMT. JUSTICE K. SUJANA
CRIMINAL PETITION No.738 of 2023
ORDER:
This petition is filed under Section 482 Cr.PC seeking to quash the proceedings against the petitioner/accused in C.C.No.31 of 2019 on the file of II Metropolitan Magistrate, Rachakonda, Ranga Reddy District, for the offence punishable under Section 138 of the Negotiable Instruments Act.
2. The facts of the case are that the 2nd respondent filed a complaint alleging that the petitioner herein acquainted him through his brother and has money transaction as such the petitioner borrowed three lakh from him on 02.03.2017 at the residence of the complainant in the presence of one Sudhakar by way of cash for his family necessities and promised to repay within one year with interest at the rate of 12% per annum and executed a promissory note and issued an empty cheque bearing number 262068 drawn on ING Vysya Bank Limited, Saroornagar Branch. After completion of one year, the complainant demanded for repayment of said amount and the petitioner postponed the same and finally on 01.07.2018, the complainant along with his friend K. Subhash Kumar approached the accused and demanded to repay the amount but again the accused requested the complainant to wait until 08.07.2018, and present the given empty signed cheque for Rs.3,50,000/- and assured the 2 complainant that the cheque will be honoured on presentation, but the same was returned with an endorsement "Account Closed". When the same was informed to the petitioner, the petitioner gave false and evasive answers as such he issued notice on 31.08.2018 through registered post and the same was received by the petitioner on 08.09.2018 and the statutory period ended on 23.09.2018 and the petitioner has not repaid the amount as such the complainant filed the complaint on 22.10.2018.
3. The contention of the learned counsel for the petitioner is that the petitioner borrowed from the 2nd respondent an amount of Rs.3,00,000/- with interest and executed a promissory note for Rs.3,00,000/-. It is also contended that the 2nd respondent being a business man dealing monetary transactions and having knowledge that CTS cheques have come into existence from the year 2010 and whereas the cheque bearing No.262068 alleged to have been issued in the year 2017 by the petitioner is non-CTS cheque on the date of alleged loan transaction of Rs.3,00,000/-, and the 2nd respondent was fully aware that the ING Vysya Bank was merged with Kotak Mahindra Bank from 01.04.2015 and the name ING Vysya Bank had changed to Kotak Mahindra Bank, and further on 15.05.2016, the whole merger process was completed, and under these circumstances, no prudent man can accept such alleged blank demand promissory note as well as non-CTS cheque drawn on ING Vysya Bank to recover his debt. The reconcile/review statement in respect of the petitioner's 3 bank account in ING Vysya Bank that the alleged cheque bearing No.262068 was issued in the year 2008 and not in the year 2017 as alleged by 2nd respondent. Therefore, the alleged cheque bearing No.262068 is defect in structure and said cheque was tried to be credited to non-existing bank account of the petitioner. The defect in structure of cheque does not attract Section 138 of the NI Act. Therefore, the allegation of executing the demand promissory note and issue of empty signed cheque by the petitioner towards discharge of legally enforceable debt is false and concocted to blackmail the petitioner. Therefore, he prayed the Court to quash the proceedings against the petitioner.
4. Heard Sri Naga Srinivasa Rao, learned counsel appearing on behalf of the petitioner, as well as Sri S. Ganesh, learned Assistant Public Prosecutor appearing on behalf of respondent No.1.
5. Learned counsel for the petitioner would submit that on the date of issuance of cheque in 2017, the ING Vysya Bank itself is not in existence as it was merged with Kotak Mahindra Bank in 2015 itself and further submitted that there is no prima facie case made out against the petitioner and the trial Court failed to take into consideration that the 2nd respondent never attended the Court below after its admission out of 14 hearings mentioned in docket proceedings. When there is no legally enforceable debt, the complaint 4 itself is not maintainable as such prayed the Court to quash the proceedings.
6. On the other hand, though notice served on the respondent, none appeared on behalf of the respondent. As seen from the record, the contention of the learned counsel for the petitioner is that the bank itself is not existing on the date of issuance of cheque and there is notice to the customers by Reserve Bank of India, advising complete withdrawal of non-CTS instruments by June 2017 and bank has been issuing CTS compliant cheques to the customers. Account holders holding cheques issued prior to 2011 were requested to surrender to the branch and get new cheque books. Allegedly the cheque issued by the petitioner is non-CTS instrument.
7. Learned counsel for the petitioner submits that trial has not commenced in the present case. While dealing with a petition under Section 482 Cr.P.C., the Court has to consider that the averments in the complaint constitute offences alleged against the accused, that the contentions raised are technicalities, and that the bank was not in existence on the date of presenting the cheque. It is further submitted that in cheque return memo, it is mentioned as "Account Closed" and dishonor of cheque on the ground of petitioner's account closed. According to the petitioner, the said closure report is due to merger of drawer bank with Kotak Mahindra Bank. It is the further contention that limitation is barred. These aspects cannot be considered in this 5 petition as it requires trial. Whether the cheque was non-CTS or not also requires trial, and therefore the proceedings cannot be quashed in the present case.
8. At this stage, it is pertinent to note the Judgment of the Hon'ble Supreme Court in State of Madhya Pradesh vs. Surendra Kori 1, wherein, in paragraph No.14 it is held as follows:
"The High Court in exercise of its powers under Section 482 Cr.P.C. does not function as a Court of appeal or revision. This Court has, in several judgments, held that the inherent jurisdiction under Section 482 Cr.P.C., though wide, has to be used sparingly, carefully and with caution. The High Court, under Section 482 Cr.P.C., should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of wide magnitude and cannot be seen in their true perspective without sufficient material."
9. In view of the above discussion as well as the law laid down by the Hon'ble Supreme Court in Surendra Kori (supra), this Court does not find any merit in this criminal petition to quash the proceedings in C.C.No.31 of 2019 on the file of II Metropolitan Magistrate, Rachakonda, Ranga Reddy District against the petitioner/accused, and the same is liable to be dismissed.
10. Accordingly, the criminal petition is dismissed. However, as the matter pertains to 2019, the trial Court is directed to conclude the 1 (2012) 10 Supreme Court Cases 155 6 proceedings within six months from the date of receipt of a copy of this order.
Miscellaneous applications, pending if any, stand closed.
______________ K. SUJANA, J 01st July, 2024 ksm