Telangana High Court

K. Venkateshwarlu vs The State Of Telangana, on 1 July, 2024

           THE HONOURABLE SMT. JUSTICE K. SUJANA

               CRIMINAL PETITION No.738 of 2023

ORDER:

This petition is filed under Section 482 Cr.PC seeking to

quash the proceedings against the petitioner/accused in C.C.No.31 of

2019 on the file of II Metropolitan Magistrate, Rachakonda, Ranga

Reddy District, for the offence punishable under Section 138 of the

Negotiable Instruments Act.

2. The facts of the case are that the 2nd respondent filed a

complaint alleging that the petitioner herein acquainted him through

his brother and has money transaction as such the petitioner

borrowed three lakh from him on 02.03.2017 at the residence of the

complainant in the presence of one Sudhakar by way of cash for his

family necessities and promised to repay within one year with interest

at the rate of 12% per annum and executed a promissory note and

issued an empty cheque bearing number 262068 drawn on ING Vysya

Bank Limited, Saroornagar Branch. After completion of one year, the

complainant demanded for repayment of said amount and the

petitioner postponed the same and finally on 01.07.2018, the

complainant along with his friend K. Subhash Kumar approached the

accused and demanded to repay the amount but again the accused

requested the complainant to wait until 08.07.2018, and present the

given empty signed cheque for Rs.3,50,000/- and assured the

complainant that the cheque will be honoured on presentation, but

the same was returned with an endorsement "Account Closed". When

the same was informed to the petitioner, the petitioner gave false and

evasive answers as such he issued notice on 31.08.2018 through

registered post and the same was received by the petitioner on

08.09.2018 and the statutory period ended on 23.09.2018 and the

petitioner has not repaid the amount as such the complainant filed

the complaint on 22.10.2018.

3. The contention of the learned counsel for the petitioner is

that the petitioner borrowed from the 2nd respondent an amount of

Rs.3,00,000/- with interest and executed a promissory note for

Rs.3,00,000/-. It is also contended that the 2nd respondent being a

business man dealing monetary transactions and having knowledge

that CTS cheques have come into existence from the year 2010 and

whereas the cheque bearing No.262068 alleged to have been issued in

the year 2017 by the petitioner is non-CTS cheque on the date of

alleged loan transaction of Rs.3,00,000/-, and the 2nd respondent was

fully aware that the ING Vysya Bank was merged with Kotak

Mahindra Bank from 01.04.2015 and the name ING Vysya Bank had

changed to Kotak Mahindra Bank, and further on 15.05.2016, the

whole merger process was completed, and under these circumstances,

no prudent man can accept such alleged blank demand promissory

note as well as non-CTS cheque drawn on ING Vysya Bank to recover

his debt. The reconcile/review statement in respect of the petitioner's

bank account in ING Vysya Bank that the alleged cheque bearing

No.262068 was issued in the year 2008 and not in the year 2017 as

alleged by 2nd respondent. Therefore, the alleged cheque bearing

No.262068 is defect in structure and said cheque was tried to be

credited to non-existing bank account of the petitioner. The defect in

structure of cheque does not attract Section 138 of the NI Act.

Therefore, the allegation of executing the demand promissory note and

issue of empty signed cheque by the petitioner towards discharge of

legally enforceable debt is false and concocted to blackmail the

petitioner. Therefore, he prayed the Court to quash the proceedings

against the petitioner.

4. Heard Sri Naga Srinivasa Rao, learned counsel appearing on

behalf of the petitioner, as well as Sri S. Ganesh, learned Assistant

Public Prosecutor appearing on behalf of respondent No.1.

5. Learned counsel for the petitioner would submit that on the

date of issuance of cheque in 2017, the ING Vysya Bank itself is not in

existence as it was merged with Kotak Mahindra Bank in 2015 itself

and further submitted that there is no prima facie case made out

against the petitioner and the trial Court failed to take into

consideration that the 2nd respondent never attended the Court below

after its admission out of 14 hearings mentioned in docket

proceedings. When there is no legally enforceable debt, the complaint

itself is not maintainable as such prayed the Court to quash the

proceedings.

6. On the other hand, though notice served on the respondent,

none appeared on behalf of the respondent. As seen from the record,

the contention of the learned counsel for the petitioner is that the

bank itself is not existing on the date of issuance of cheque and there

is notice to the customers by Reserve Bank of India, advising complete

withdrawal of non-CTS instruments by June 2017 and bank has been

issuing CTS compliant cheques to the customers. Account holders

holding cheques issued prior to 2011 were requested to surrender to

the branch and get new cheque books. Allegedly the cheque issued by

the petitioner is non-CTS instrument.

7. Learned counsel for the petitioner submits that trial has not

commenced in the present case. While dealing with a petition under

Section 482 Cr.P.C., the Court has to consider that the averments in

the complaint constitute offences alleged against the accused, that the

contentions raised are technicalities, and that the bank was not in

existence on the date of presenting the cheque. It is further submitted

that in cheque return memo, it is mentioned as "Account Closed" and

dishonor of cheque on the ground of petitioner's account closed.

According to the petitioner, the said closure report is due to merger of

drawer bank with Kotak Mahindra Bank. It is the further contention

that limitation is barred. These aspects cannot be considered in this

petition as it requires trial. Whether the cheque was non-CTS or not

also requires trial, and therefore the proceedings cannot be quashed

in the present case.

8. At this stage, it is pertinent to note the Judgment of the

Hon'ble Supreme Court in State of Madhya Pradesh vs. Surendra

Kori 1, wherein, in paragraph No.14 it is held as follows:

"The High Court in exercise of its powers under Section 482 Cr.P.C. does not function as a Court of appeal or revision. This Court has, in several judgments, held that the inherent jurisdiction under Section 482 Cr.P.C., though wide, has to be used sparingly, carefully and with caution. The High Court, under Section 482 Cr.P.C., should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of wide magnitude and cannot be seen in their true perspective without sufficient material."

9. In view of the above discussion as well as the law laid down

by the Hon'ble Supreme Court in Surendra Kori (supra), this Court

does not find any merit in this criminal petition to quash the

proceedings in C.C.No.31 of 2019 on the file of II Metropolitan

Magistrate, Rachakonda, Ranga Reddy District against the

petitioner/accused, and the same is liable to be dismissed.

10. Accordingly, the criminal petition is dismissed. However, as

the matter pertains to 2019, the trial Court is directed to conclude the

1 (2012) 10 Supreme Court Cases 155

proceedings within six months from the date of receipt of a copy of

this order.

Miscellaneous applications, pending if any, stand closed.