Andhra Pradesh High Court - Amravati

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

     HON'BLE SRI JUSTICE DUPPALA VENKATA RAMANA

              CRIMINAL PETITION No.4667 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.382/2015 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.382/2015 on the file of

Additional Judicial Magistrate of First Class, Tiruvur alleging that

the petitioner borrowed an amount of Rs.4,00,000/- on 05.03.2014

from the 2nd respondent and issued a cheque bearing No.000004,

dt.18.04.2015 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.22.04.2015 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

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

notice to the petitioner on 25.04.2015 and the same notice was

received and issued belated reply dt.14.05.2015 and 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, no response from

the Police. Hence, the petitioner prays to quash the proceedings in

C.C.382/2015 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 and filed a false complaint.

Therefore, the petitioner filed the present petition to quash the

proceedings in C.C.382/2015.

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.25.04.2015, the

petitioner issued belated reply on 14.05.2015 with untenable

allegations. In fact, no notice was given to the 2nd respondent or

Sindhu Srinu for obtaining their signatures on the pronotes and

cheques immediately either on the same day or on the next day 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, herself 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 the

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

petition with a prayer to quash the proceedings in C.C.382/2015.

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 the 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 the initial stage of the issuance of process, it was not

open to Courts to stifle proceedings by entering into merits of the

contentions made on behalf of the accused. Criminal complaints

could not be quashed only on the ground that, allegations made

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

alleged against the accused were prima facie made out in the

complaint, the criminal proceeding shall not be interdicted.

10. It is also relevant to refer to 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 the exercise of its

inherent powers under Section 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 her signatures 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 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 or on the next day to prove their defence. On the

other hand, the cheque is dt.05.03.2014 whereas, it is alleged in

2022 SCC OnLine SC 513

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 defence. However, the