Andhra Pradesh High Court - Amravati

Smt. Chittaluri Dhanalakshmi vs The State Of A.P.,Rep.,Pp And ... on 15 September, 2022

     HON'BLE SRI JUSTICE DUPPALA VENKATA RAMANA

              CRIMINAL PETITION No.4697 of 2016


ORDER:

This Criminal Petition is filed by the petitioner under Section

482 of the Code of Criminal Procedure (for short 'Cr.P.C') to quash

the proceedings in C.C.430/2015 pending on the file of the learned

Additional Judicial Magistrate of First Class, Turuvur.

2. Perusal of the record would reveal that the petitioner herein

is the sole accused and the offence alleged against the petitioner is

under Section 138 of the Negotiable Instruments Act (for short 'the

N.I. Act').

3. As per the complaint, the allegations against the petitioner,

are as follows:

The 2nd respondent herein filed C.C.430/2015 on the file of

Additional Judicial Magistrate of First Class, Tiruvur alleging that

the petitioner borrowed an amount of Rs.2,50,000/- on 27.10.2013

from the 2nd respondent and issued a cheque bearing No.000005,

dt.25.04.2015 towards part satisfaction of the debt. The 2nd

respondent had presented the cheque for encashment. The said

cheque was sent for clearance which was returned vide memo

dt.05.05.2015 without making any payment, for the reason that

the cheque was stopped on the ground of lost/theft, through

online/net banking. After getting information regarding the

dishonor of the said cheque, the 2nd respondent issued a legal

notice to the petitioner on 20.05.2015 and the same notice was

returned unclaimed, and the petitioner failed to pay the amount, as

such the present complaint has been filed and the learned

Magistrate found that there is sufficient material to proceed with

the case for the offence under Sec.138 of N.I.Act against the

petitioner herein.

4. Whereas, the case of the petitioner is that, when the husband

of the petitioner having financial problems and to incur the medical

expenses of the mother-in-law of the petitioner, approached one

Sindhu Srinu and requested to arrange financial assistance of

Rs.1,00,000/-. On that, said Srinu advanced Rs.50,000/- and

obtained blank promissory notes and cheques from the husband of

the petitioner and on the next day, said Srinu came to their home

and asked to return the amount of Rs.50,000/- which was given to

them as he was in urgent need of money, without returning the

said blank promissory note and cheque. Knowing that the

petitioner is a Government employee, stating that he will arrange

the amount through third parties, said Srinu obtained blank

pronotes and cheques from them and handed over the same to

third parties. While the matter stood thus, on 03.03.2015, the said

Srinu along with his men, illegally detained the petitioner and her

husband in their house, forcibly had taken HDFC bank cheque

books bearing cheque Nos. 000001 to 000025 and 001526 to

001535 and S.B.I cheque books belong to the husband of the

petitioner bearing cheque Nos.847903 to 847913 and from 847915

to 847942 and 847944 to 848000 and also the blank promissory

notes and obtained their signatures forcibly. Immediately the

petitioner and her husband made a complaint to their respective

banks on 04.03.2015 not to honour the cheques and made a

complaint to the S.H.O., Tiruvur Police Station on 06.03.2015, but

the Police had not taken any action. The petitioner gave a

complaint to the Tahsildar, Tiruvur stating that the 2nd respondent

was doing money lending business and to take appropriate action

against him. Accordingly, the Tahsildar, Tiruvur issued a notice to

the 2nd respondent and his men on 02.02.2016, but they did not

turn up and the petitioner gave another complaint to the Police on

09.02.2016. The petitioner filed W.P.No. 9009 of 2016 on the file of

this Court for not registering the F.I.R. The Hon'ble Court was

pleased to dispose of the same directing the Police Authorities to

take suitable action, but there was no response from the Police.

Hence, the petitioner prays to quash the proceedings in

C.C.430/2015 on the file of the learned Additional Judicial

Magistrate of First Class, Tiruvur.

5. Learned counsel for the petitioner would submit that the

cheques had not been issued by the petitioner to discharge the

legally enforceable debt and the cheque books were obtained by

Sindhu Srinu and his men by detaining the petitioner and her

husband and obtained their signatures on the pronotes and

cheques forcibly. Immediately the petitioner lodged a complaint

with the Police as well as Tahsildar, Tiruvur, but there was no

response from the Police. Inspite of the issuance of notice by the

Tahsildar, Tiruvur, the 2nd respondent, and his men did not turn

up and did not submit any explanation. The 2nd respondent might

have used one of the cheques in which signatures were obtained by

force and filed a false complaint. Therefore, the petitioner filed the

present petition to quash the proceedings in C.C.430/2015.

6. Learned counsel for the 2nd respondent would submit that

the petitioner borrowed the amount from the 2nd respondent and to

discharge her liability, issued a cheque and when the said cheque

was presented for collection, the same was returned on the ground

of stop payment by the drawer and that the cheque was lost/theft,

through online/net banking. The learned counsel further

contended that, if really the petitioner had not borrowed any

amount and issued a cheque towards discharge of the debt, when

the 2nd respondent issued a legal notice dt.20.05.2015, the

petitioner would not have received and returned unclaimed. It

shows the conduct of the petitioner to avoid receipt of the notice.

In fact, no notice was given to the 2nd respondent or Sindhu Srinu

for obtaining their signatures on the pronotes and cheques

immediate either on the same day or on the next day through

advocate in order to prove their defence. Therefore, there are

factual aspects and the above aspects are triable issues, which are

to be considered by the trial Court during trial. It is for the trial

Court to consider the same and this Court cannot consider the said

defence in a petition filed under Sec.482 Cr.P.C.

7. In view of the rival contentions raised by the respective

counsels, according to the petitioner herein, she had not issued the

said cheque to discharge the legally enforceable debt. The defence

taken by the petitioner is that she and her husband were detained

by Sindhu Srinu and they obtained cheque books and pronotes

and obtained signatures from them by using force and one of the

said cheques was used in this case. The further case of the

petitioner is that, she had given a report to the Police, but no action

had been taken and she approached this Court by filing this

petition. The defences taken by the petitioner are triable issues.

The petitioner has to take defence before the trial Court during

trial. Instead of facing the trial, the petitioner filed the present

petition with a prayer to quash the proceedings in C.C.430/2015.

8. As stated above, the contentions and the defences taken by

the petitioner, cannot be considered in a petition filed under

Sec.482 Cr.P.C. The petitioner has to take said defence before the

trial Court and she has to face the trial and prove her innocence.

9. In view of the facts and circumstances of the case, it is apt to

refer to the decision rendered by the Hon'ble Supreme Court of

India in Kamal Shivaji Pokarnekar Vs. State of

Maharashtra1 wherein the Hon'ble Apex Court has categorically

held that quashing criminal proceedings was called for only in a

case where the complaint did not disclose any offence, or was

frivolous, vexatious, or oppressive. If the allegations set out in the

complaint did not constitute offence of which cognizance had been

taken by the Magistrate, it was open to High Court to quash the

same. It was not necessary that, a meticulous analysis of the case

should be done before trial to find out whether the case would end

in conviction or acquittal. If it appeared on a reading of the

complaint and consideration of allegations therein, in light of the

statement made on oath that the ingredients of the offence are

disclosed, there would be no justification for High Court to

interfere. The defences that might be available, or facts/aspects

which when established during the trial, might lead to an acquittal,

2019 SCC Online SC 182

were not grounds for quashing the complaint at the threshold. At

that stage, the only question relevant was whether averments in

complaint spell out ingredients of a criminal offence or not. The

Court has to consider whether the complaint discloses the prima

facie, offences that were alleged against respondents. The

correctness or otherwise of said allegations has to be decided only

in the trial. At initial stage of issuance of process, it was not open

to Courts to stifle proceedings by entering into merits of the

contentions made on behalf of accused. Criminal complaints could

not be quashed only on ground that, allegations made therein

appear to be of a civil nature. If ingredients of offence alleged

against accused were prima facie made out in complaint, criminal

proceeding shall not be interdicted.

10. It is also relevant to refer the decision of the Hon'ble Supreme

Court of India in Skoda Auto Volkswagen India Private Limited

Vs. State of Utter Pradesh2 wherein the Hon'ble Apex Court while

referring to the various judgments rendered by it, categorically held

that the High Courts in exercise of its inherent powers under

Secton 482 Cr.P.C has to quash the proceedings in criminal cases

in rarest of rare cases with extreme caution.

2020 Latest Case Law 620 SC

11. In view of the principles laid down by the Hon'ble Apex Court

and in view of the above discussion, it is clear that, the defence

taken by the petitioner had not stated in the petition that Sindhu

Srinu or his men forcibly had taken cheque book and obtained her

signatures thereon. Whereas, she had given a report to the Police

on 06.03.2015 wherein she stated that the said Srinu knowing

about her government employment, obtained the signatures of the

petitioner on the promissory notes and cheques and in another

complaint given to the Police dt.09.02.2016, the petitioner stated

that said Srinu came to them and took the money which was given

one day before and after knowing that the petitioner was a teacher,

obtained her signatures on the promissory notes and cheques and

left the place. After receipt of legal notice, the petitioner had given

a reply at the belated stage. But, the said notice was not filed

along with this petition to know as to what defence she had taken

at the primary stage. However, the learned Additional Judicial

Magistrate of First Class, Tiruvur is empowered to take cognizance

of the offence under Section 138 of the N.I.Act after examining the

complaint and recording the statements of the 2nd respondent and

he had taken cognizance.

12. Learned counsel for the 2nd respondent relied on the decision

in Rathish Babu Unnikrishnan Vs. State (Govt. of NCT of Delhi)

and another3 wherein at Para No.15, Hon'ble Apex Court held as

follows:

"15. In the impugned judgment, the learned Judge had rightly relied upon the opinion of Justice J.S.Khehar for a Division Bench in Rajiv Thapar, which succinctly express the following relevant parameters to be considered by the quashing Court, at the stage of issuing process, committal, or framing of charges,

"28. The High Court, in exercise of its jurisdiction under Section 482 Cr.P.C,, must make a just and rightful choice. This is not a stage of evaluating the truthfulness or otherwise of the allegations levelled by the prosecution/complainant against the accused. Likewise, it is not a stage for determining how weighty the defences raised on behalf of the accused are. Even if the accused is successful in showing some suspicion or doubt, in the allegations levelled by the prosecution/complainant, it would be impermissible to discharge the accused before trial. This is so because it would result in giving finality to the accusations levelled by the prosecution/complainant, without allowing the prosecution or the complainant to adduce evidence to substantiate the same"".

13. In the light of the above circumstances, the pleas taken by

the petitioner in the petition and in the reports which were given to

the Police, dt.06.03.2015 and 09.02.2016, are inconsistent and

contrary to each other, as stated above. In fact, no notice was

given to the 2nd respondent or Sindhu Srinu for obtaining their

signatures on the pronotes and cheques immediately whether on

the same day of on the next day through advocate in order to prove

2022 SCC OnLine SC 513

their defence. On the other hand, the cheque is dt.27.10.2013

whereas, it is alleged in the complaint that Sindhu Srinu and his

men obtained their signatures on the pronotes and cheques

forcibly by detaining them on 03.03.2015. Which falsifies their