Andhra Pradesh High Court - Amravati
B.V.Hari Prasad vs State Of Ap., on 2 January, 2024
THE HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO
CRIMINAL PETITION No.3913 OF 2018
ORDER:
The present criminal petition is filed seeking to call for the
records pertaining to C.C.No.442 of 2017, on the file of the Special
Judicial Magistrate for Prohibition & Excise-cum-Judicial
Magistrate of First Class, Guntur and to quash the same.
2. Brief facts of the case is that:
(a) The petitioner/accused had borrowed a sum of
Rs.3,75,000/- from the 2nd respondent herein on 26.11.2016, by
way of hand loan, in presence of the mediators and on repeated
demands, the petitioner/accused for discharging of the said debit
issued a cheque bearing No.777598 dated 28.03.2017, for an
amount of Rs3,75,000/-, drawn on Syndicate bank, C-Camp
branch, Kurnool and the same was presented by the 2nd respondent
herein in his bank and it was returned on 27.06.2017 with an
endorsement "contact drawer bank".
(b) The 2nd respondent informed the same to the petitioner
and the petitioner orally represented the 2nd respondent to present
the said cheque again for collection and again as per the
instructions of the petitioner, the 2nd respondent present the said
cheque and on 05.07.2017, the said cheque was returned with an
endorsement "other reason-shifted".
(c) Therefore, as there is no other go, the 2nd respondent
herein constrained to file a private complaint for the offences
punishable under Sections 138 and 142 of the Negotiable
Instruments Act, 1881 (for short "N.I.Act"), after following the due
procedure, as contemplated under the N.I.Act.
(d) Now, the said complaint was assailed in the present
criminal petition on the ground that the petitioner has lost his five
cheques and the same were misused by the 2nd respondent.
3. On entire reading of the reply legal notice issued by the
petitioner/accused, it is asserted that the petitioner/accused has
addressed a letter dated 02.11.2010 to his banker about the loss of
five blank cheque leaves bearing Nos.777596 to 777600. As seen
from the reply legal notice, the petitioner/accused has not made
any complaint to the police for the loss of cheque leaves.
4. Now, the learned counsel for the petitioner would submit that
the cheque was not bounced due to the insufficient funds, it was
returned with an endorsement "contact drawer bank" that it would
not amount dishonor, therefore, he pleads to quash the
proceedings.
5. In Modi Cements Limited v. Kuchil Kumar Nandi1 it has
been held that even when a cheque is dishonored by reason of "stop
payment" instruction, is an offence under Section 138 N.I.Act
would still be made out.
6. In Electronic Trade & Development Technologies
Corporation, Ltd., Secundrabad v. Indian Technologists &
Engineers (Electronics) (P) Ltd and another2 it would thus be
clear that when a cheque is drawn by a person on an account
maintained by him with the banker, for payment of any amount of
money to another person out of that account, for the discharge of
debt in whole or in part or other liability, is returned by the bank
with an endorsements like, "refer to contact the drawer bank"
"instructions for stoppage of payment" and "stamp exceeds
arrangements", it amounts to dishonor within the meaning of
Section 138 of N.I.Act.
7. As per the judgments referred supra it is deducible for
whatever reasons a cheque is returned a complaint can be
maintained under Section 138 of N.I.Act. In the present case, it is
admitted that a letter dated 02.11.2010 was addressed by the
petitioner/accused to his banker.
1998 (3) SCC 249
1996 (2) SCC 739
8. In view of the aforesaid decisions, "referring to the bank" also
falls under the category of dishonor of cheque, therefore, the
contention raised by the petitioner is untenable and is liable to be
rejected.
9. Whenever facts are disputed, truth should be allowed to
emerge by leading evidence, on this aspect it may be evident to
refer the ratio laid in Rajeshbhai Muljibhai Patel and others v.
State of Gujarat and another3 whereas, following opinion was
rendered by Hon'ble Justice R.Banumathi: when disputed
questions of facts are involved which need to be adjudicated after
the parties adduce evidence, the complaint under Section 138 N.I
Act, ought not to have been quashed by the High Court by taking
recourse to Section 482 Cr.P.C., as held by the Hon'ble Apex Court
in Modi Cements referred (1) supra and in Indian Electronics
referred (2) supra, when a cheque was returned by the bank with
such any endorsement, amounts to dishonor within the meaning to
Section 138 of N.I.Act.
10. The case of the 2nd respondent herein is that cheques were
issued by the petitioner and the same was presented in the bank
and it was returned twice with an endorsement "contact drawer
bank" and at the direction given by the petitioner herein, the
2020 (3) SCC 794
drawer bank has not released the cheque amounts, therefore, the
endorsement "contact the drawer bank" amounts dishonor of
cheque.
11. Therefore, this Court is declined to accept the grounds raised
by the petitioner as not a valid and legal grounds, to quash the
proceedings.
12. Accordingly, the Criminal Petition is dismissed.
As a sequel, miscellaneous petitions, if any, pending in this
Criminal Petition shall stand closed.
________________________________________
JUSTICE TARLADA RAJASEKHAR RAO
Date:02.01.2024
KBN
THE HON'BLE SRI JUSTICE TARLADA RAJASEKHARA RAO
CRIMINAL PETITION No.3913 OF 2018
Date:02-01-2024
KBN
