Telangana High Court
A.V.V.R.Kumar vs The State Of Telangana on 29 December, 2023
HIGH COURT FOR THE STATE OF TELANGANA
AT HYDERABAD
*****
Criminal Petition No.7240 OF 2020
Between:
A.V.V.R.Kumar and another ... Petitioners
And
The State of Telangana
Through Public Prosecutor and another. ..Respondents/Complainant
DATE OF JUDGMENT PRONOUNCED :29.12.2023
Submitted for approval.
THE HON'BLE SRI JUSTICE K.SURENDER
1 Whether Reporters of Local
newspapers may be allowed to see the Yes/No
Judgments?
2 Whether the copies of judgment may
be marked to Law Reporters/Journals Yes/No
3 Whether Their Ladyship/Lordship
Wish to see their fair copy of the Yes/No
Judgment?
__________________
K.SURENDER, J
2
* THE HON'BLE SRI JUSTICE K. SURENDER
+ CRL.P. No.7240 of 2020
% Dated 29.12.2023
# A.V.V.R.Kumar and another ... Petitioners
And
$ The State of Telangana
Through Public Prosecutor and another Respondents/Complainants
! Counsel for the Petitioners: Sri V.V.Ramana
^ Counsel for the Respondents: Addl. Public Prosecutor
>HEAD NOTE:
? Cases referred
1
Crl.M.C.No.2345 of 2015 dated 24.10.2019.
2 2009 Crl.L.J. 3462 (SC)
3 2010 Crl.L.J 2223 (SC)
3
THE HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL PETITION No.7240 of 2020
ORDER:
1. This Criminal Petition is filed to quash the proceedings
against the petitioners/A1 and A2 in C.C.NO.16132 of 2019
on the file of IV Additional Chief Metropolitan Magistrate at
Nampally, Hyderabad, which charge sheet was filed for the
offences under Sections 406 and 420 r/w 120-b of IPC.
2. The 2nd respondent filed a private complaint before the
learned Magistrate on 01.05.2019, alleging that he is
acquainted with the petitioners, who are A1 and A2 since the
year 2011. In the year 2012, Rs.63.00 lakhs was taken as loan
by the petitioners and promised to return the amount with 3%
per annum. Though the amount was promised to be repaid
within one month, petitioners failed to do so. On persistent
demand, two promissory notes were executed on 27.07.2016
for R.31.00 lakhs and Rs.32.00 lakhs. The cheques were also
issued without dates with an understanding that they can be
deposited at any point of time within six months. Though,
cheques were given, petitioners started insisting the 2nd
respondent not to present the cheques. However, when the
cheque for Rs.32.00 lakhs was presented, the same was
returned for the reason of 'insufficient funds'.
3. Complaint was filed under Section 138 of the Negotiable
Instruments Act. However, on the promise that payments
would be made, the case was withdrawn by the 2nd
respondent. The petitioners failed to make the payment in
respect of Rs.32.00 lakhs as promised while withdrawing the
case filed under Section 138 of the Negotiable Instruments
Act.
4. The 2nd cheque for Rs.31.00 lakhs was also deposited on
25.03.2019, but it was returned with an endorsement 'to
contact drawer'. For the said reason of causing wrongful loss
of Rs.63.00 lakhs, complaint was filed before the police.
However, since the police failed to act on the criminal
complaint, private complaint was filed, which was referred to
police for the purpose of investigation. Having investigated the
case, the Kacheguda police filed charge sheet.
5. Learned counsel appearing for the petitioners would
submit that there is an inordinate delay of seven years in
lodging the complaint, which is unexplained. In fact, the
petitioners have filed Insolvency Petition in the year 2016
itself, which is to the knowledge of the 2nd respondent and his
name was also shown as defendant in the said petition. The
cheques which were earlier taken were misused and false
complaint was filed. Learned counsel further argued that
cheque bounce case was voluntarily withdrawn and having
done so, it is not open for the 2nd respondent to file criminal
complaint under Section 420 of IPC.
6. On the other hand, learned counsel for the 2nd
respondent would submit that the delay in lodging the
complaint is of no consequence since Section 468 of IPC
cannot be pressed into service. Further, once the basic
ingredients of Section 420 of IPC are made out, the Court has
to proceed against the accused. In the present case, from the
facts, it is apparent that the petitioners entertained fraudulent
intention from the inception of the transactions. In the said
circumstances, the proceedings against the petitioners cannot
be quashed and it is for the trial Court to decide on the facts of
the case after adducing evidence. In support of his contention,
he relied on the judgment of Kerala High Court in the case of
Sindhu S.Panicker and others v. A.Balakrishnan and
others 1.
7. Learned counsel for the 2nd respondent further argued
that only for the reason of the transactions making out a civil
dispute, it will not preclude the complainant from filing
criminal complaint when any criminal offence is made out in
the transactions.
8. The alleged loan was taken on 07.12.2012 by executing
an undertaking that the amount would be returned with
interest at 3% per annum. Two receipts dated 30.08.2019 and
09.09.2019 were filed by the petitioners in which the 2nd
respondent has acknowledged the receipt of Rs.6.00 lakhs.
The said receipt of amount is not disputed by the learned
counsel for the 2nd respondent. However, it was argued that
the question of paying the amount does not arise unless the
money is outstanding and it is clear that the amount was
outstanding.
Crl.M.C.No.2345 of 2015 dated 24.10.2019.
9. The amount allegedly was given on 07.12.2012. Though
it is stated that an agreement was entered into on the said
date, the 2nd respondent has failed to proceed on the basis of
the said agreement. The case is one of loan transaction, which
was given by the 2nd respondent to the petitioners herein. It is
not the case that any misrepresentation was made while
taking the alleged loan amount. According to the 2nd
respondent a promise was made by the petitioners that the
amount would be paid at a later date. The promise to pay at a
later date and for whatever reasons, the borrower fails to repay
the said amount at a later date, it cannot be said that the
borrower had deliberately taken the amount with an intention
to defraud the person who has lent the money.
10. Having not taken any action till the year 2016 after giving
cheques, complaint under Section 138 of the Negotiable
Instruments Act was also filed. The said complaint was
withdrawn. However, there are no documents filed to show the
reasons for the said withdrawal. Neither documents were
executed nor cheques issued at the time of the said
withdrawal. It appears that, in the circumstances, it does not
indicate that there was any fraudulent intention on the part of
the petitioners in the withdrawal of the complaint. Admittedly,
ante-dated cheques were given in the year 2016. One cheque
was presented and thereafter criminal complaint under
Section 138 of the NI Act was filed. As already stated two
cheques i.e., one for Rs.31.00 lakhs and Rs.32.00 lakhs was
given in the year 2016. The 2nd cheque was for Rs.32.00
lakhs, which was presented in the year 2019 and thereafter,
private complaint was filed. No steps were taken to file cheque
bounce case for the dishonour of the second cheque.
11. The Hon'ble Supreme Court in the case of Harmanpreet
Singh Ahluwalia v. State of Punjab 2 held that for the
purpose of constituting an offence of cheating, the
complainant is required to show that the accused had
fraudulent or dishonest intention at the time of making
promise or representation. Even in a case where allegations
are made in regard to failure on the part of the accused to
keep his promise, in absence of a culpable intention at the
2009 Crl.L.J. 3462 (SC)
time of making initial promise being absent, no offence under
Section 420 of IPC can be said to have been made out.
12. In Md. Ibrahim v. State of Bihar 3, the Hon'ble Supreme
Court held that to constitute an offence under Section 420 of
IPC, there should not only be cheating but as a consequence
of cheating, the accused should have dishonestly induced the
person deceived (i) to deliver any property to any person, or (ii)
to make, alter or destroy wholly or in part a valuable security.
13. The petitioners have executed an agreement for
repayment in the year 2012 and thereafter, issued cheques in
the year 2016. The 1st cheque when presented for clearance
was returned, for which reason, complaint was filed and later
withdrawn. The 2nd cheque was also filed but the 2nd
respondent filed criminal complaint for cheating. Only for the
reason of the cheques which were given towards repayment
were bounced, it cannot be said that the petitioners have
entertained fraudulent intention from the inception of the
transaction.
2010 Crl.L.J 2223 (SC)
14. In the present case, the conduct of the 2nd respondent in
lodging the criminal complaint after nearly seven years when
there were transactions in between the parties either by
executing promissory notes or issuing cheques or an
agreement entered into for repayment, at no point of time,
complaint for cheating was filed. In the present facts, it cannot
be said that the offence of cheating is made out.
15. In the result, the proceedings against petitioners/A1 and
A2 in C.C.NO.16132 of 2019 on the file of IV Additional Chief
Metropolitan Magistrate at Nampally, Hyderabad, are hereby
quashed.
16. Accordingly, this Criminal Petition is allowed.
Miscellaneous applications, if any pending in this criminal
petition, shall stand closed.
__________________
K.SURENDER, J
Date : 29.12.2023
Note: LR copy to be marked.
B/o.kvs
