Telangana High Court
Ergam Life Sciences Pvt Ltd vs The State Of Telangana on 22 February, 2023
Bench: K.Surender
THE HONOURABLE SRI JUSTICE K.SURENDER
CRIMINAL PETITION No.6379 of 2022
ORDER:
1. This Criminal Petition is filed to quash the proceedings
against the petitioners/Accused in S.T.C.No.10019 of 2021 on the
file of I Additional Junior Civil Judge-cum-I Additional Judicial
Magistrate of First class, Miryalaguda.
2. The 2nd respondent filed complaint under Section 138 of
Negotiable Instruments Act against these petitioners stating that
the 2nd respondent invested an amount of Rs.46,50,000/- on the
premise that 36% interest would be given. On demand by the 2nd
respondent, the petitioners issued two cheques which were drawn
on HDFC Bank for an amount of Rs.84.00 lakhs each. Cheque
bearing No.000082 dated 04.01.2021 was issued on behalf of the
A1 company signed by A2. Another personal cheque was given by
A2 bearing No.000001, dated 11.01.2020 for Rs.84.00 lakhs.
According to the complaint, the personal cheque was issued as
surety to indemnify, if the company A1 failed to clear the due
amount. A2 also executed indemnity bond to the complainant for
Rs.84.00 lakhs. The company cheque was presented on 29.01.2021
and the same was returned unpaid for the reason of 'payment
stopped by drawer' and the 2nd personal cheque was also returned
unpaid for the reason of 'insufficient funds'. A legal notice was
sent and since payment was not made, the present complaint was
filed.
3. Learned counsel for the petitioners would submit that the
complaint cannot be filed on the basis of two cheques that were
issued. Admittedly, there cannot be any legally enforceable debt in
the circumstances when the cheque was issued to indemnify
another cheque was issued. Further, the other Director of A1
company was not impleaded as an accused. He further argued that
issuance of summons in a criminal case is a serious matter and the
courts cannot summon an accused to undergo criminal trial
without basis. In support of his contention, he relied on the
judgment of Hon'ble Supreme Court in the case of Pooja Ravinder
Devidasani v. State of Maharashtra1, wherein the Hon'ble
Supreme Court held that putting the criminal law into motion is
not a matter of course to settle the scores between the parties
which are more in nature of civil dispute and courts cannot be
mere spectators to it. Before a Magistrate taking cognizance of an
offence making a person vicariously liable, the Court has to ensure
(2014) 16 Supreme Court Cases 1
strict compliance with the statutory requirement. He also relied on
the judgment of Hon'ble Supreme Court in the case of Ashoke Mal
Bafna v. Upper India Steel Manufacturing and Engineering
Company Limited2 wherein similar view was taken regarding
person being made vicariously liable and further held that the High
Court under the inherent powers can show indulgence and quash
the proceedings in such matters.
4. On the other hand, learned counsel for the 2nd respondent
would submit that there is no ambiguity in the complaint and the
cheque issued by the company and also the cheque issued in
personal capacity were deposited. Since the cheques were
dishonoured, complaint is filed.
5. In the complaint, it is specifically averred that there is an
outstanding of Rs.84.00 lakhs towards the material supplied by the
complainant. Since the cheque was issued by the company, the
complainant has rightly prosecuted both the company and the
signatory who is the 2nd petitioner. The complainant has narrated
all the facts about issuance of two cheques and the transactions in
between them. For the reason of giving personal cheque to
indemnify any loss after giving first cheque by the company will not
(2018) 14 Supreme Court Cases 202
in any manner have bearing on the prosecution of the complaint for
the dishonour of the cheque issued by the company. The signature
on the cheques is not denied. In the said circumstances,
presumption arises under section 139 of the Negotiable
Instruments act and it is for the petitioners to produce their
defence evidence or make out their case during the course of cross-
examination of the complainant and other witnesses.
6. I do not find any infirmity in the private complaint under
section 138 of the Negotiable Instruments act to prosecute the
petitioners herein for the offence under Section 138 of the
Negotiable Instruments Act.
7. Accordingly, the Criminal Petition is dismissed. Consequently,
miscellaneous applications pending, if any, shall stand disposed.
__________________
K.SURENDER, J
Date: 22.02.2023
kvs
THE HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL PETITION No.6379 of 2022
Dated 22.02.2023
kvs
