Telangana High Court

M/S.Srt Constructions Pvt. Ltd. And ... vs The State Of Telangana And Another on 26 September, 2024

       THE HONOURABLE SMT. JUSTICE K. SUJANA

     CRIMINAL PETITION Nos.6200 and 6201 of 2022

COMMON ORDER:

Since both the Criminal Petitions are arising out of the

same issue, they are analogously heard together and being

disposed of by this common order.

2. Criminal Petition No.6200 of 2022: This Criminal

Petition is filed by the petitioners/accused Nos.1 and 2 to quash

the proceedings against them in STC NI No.738 of 2021 pending

on the file of X Metropolitan Magistrate at Manoranjan Complex,

Hyderabad.

3. Criminal Petition No.6201 of 2022: This Criminal

Petition is filed by the petitioners/accused Nos.1 and 2 to quash

the proceedings against them in STC NI No.1366 of 2021

pending on the file of XI Metropolitan Magistrate at Manoranjan

Complex, Hyderabad.

4. For the purpose of disposal of both the Criminal

Petitions, the facts in Criminal Petition No.6200 of 2022 are

taken into consideration.

5. When respondent No.2 searching for suitable premises

in Thiruvallur District, Tamilnadu State, to run education

SKS,J CRIMINAL PETITION Nos.6200 and 6201 of 2022

institutions, accused No.2 approached him representing that

accused No.1 and one Dr.Sharmila Hariprasad, who is absolute

owner an possessor of the premises, executed a registered

development agreement on 18.08.2017 and obtained sanction

plan along with necessary certificates from the competent

authorities to construct building which is suitable for

educational institutions at No.14, Vayalanallur, a revenue

village, Sokkanallapur village, Poonamallee Taluk, Thiruvallur

District, Tamilnadu. On 28.08.2017 and 05.09.2017, at the time

of entering into lease deed agreement, respondent No.2 paid

Rs.2,45,20,000/- to accused No.1 and Rs.53,00,000/- to

Dr.Sharmila Hariprasad, as security deposit and advance rent.

Since accused and Dr.Sharmila Hariprasad failed to comply the

terms of the lease agreement and they have to indemnify

respondent No.2 in case of any loss and damage caused to him

as per agreement dated 05.09.2017, accused No.2 on behalf of

accused No.1 issued a cheque bearing No.002802 for

Rs.53,00,000/- in favour of respondent No.2. However, when

respondent No.2 produced the said cheque before the bank for

encashment, the same was returned vide memo dated

24.01.2020 with an endorsement 'funds insufficient''. Thereafter,

though respondent issued statutory notice under Section 138 of

SKS,J CRIMINAL PETITION Nos.6200 and 6201 of 2022

N.I.Act to accused Nos.1 and 2, they failed to make payment.

Hence, respondent No.2 filed a complaint against accused Nos.1

and 2.

6. Heard Sri B.Raveendra Babu, learned counsel for the

petitioners as well as Sri M.V.R.Suresh, learned counsel for

respondent No.2 and Sri Arun Kumar Doddla, learned Additional

Public Prosecutor for respondent No.1-State.

7. Learned counsel for the petitioners submitted that

though the said cheque is issued in the year 2015 as a security,

respondent No.2 used the same only to harass the petitioners. In

this regard, he placed reliance on the judgments of the Apex

Court in Abhijit Pawar v. Hemant MadhukarNimbalkar and

another 1 and Inder Mohan Goswami and another v. State of

Uttaranchal and others 2 and also prayed this Court to allow

the Criminal Petition by quashing the proceedings against the

petitioners.

8. On the other hand, learned counsel for respondent No.2

opposed the submissions of learned counsel for the petitioners

stating that there are serious allegations against the petitioners

and the merits or otherwise of the same has to be gone into by

(2017) 3 SCC 528

Criminal Appeal No.1392 of 2007

SKS,J CRIMINAL PETITION Nos.6200 and 6201 of 2022

the trial Court. Hence, he prayed this Court to dismiss the

Criminal Petition.

9. In view of the rival submissions made by both the

parties, this Court has perused the material available on record.

Though the learned counsel for the petitioners relied on the

judgments of the Apex Court in Abhijit Pawar (Supra 1) and

Inder Mohan Goswami (Supra 2), the same are not applicable

to the present case as the facts in the instant case are different

and there is no dispute regarding the issuance of the said

cheque, signature on the said cheque and also lease deed

agreement between the parties. The only allegation against the

petitioners is that they failed to indemnify respondent No.2.

10. In case of Sunil Todi and others v. State of Gujarat

and another 3, at paragraph No.53 held as under:

"53. In the present case, it is evident that the principal grounds of challenge which have been set up on behalf of the appellants are all matters of defence at the trial. The Magistrate having exercised his discretion, it was not open to the High Court to substitute its discretion. The High Court has in a carefully considered judgment, analysed the submissions of the appellants and for justifiable reasons has come to the conclusion that they are lacking in substance."

(2022) 16 Supreme Court Cases 762

SKS,J CRIMINAL PETITION Nos.6200 and 6201 of 2022

11. In case of Sampelly Satyanarayna Rao v. Indian

Renewable Energy Development Agency Limited 4, at

paragraph Nos.14 and 16 held as under:

"14. In HMT Watches Ltd. versus M.A. Abida, relied upon on behalf of the respondent, this Court dealt with the contention that the proceedings under Section 138 were liable to be quashed as the cheques were given as "security" as per defence of the accused. Negativing the contention, this Court held :-

"10. Having heard the learned counsel for the parties, we are of the view that the accused (Respondent 1) challenged the proceedings of criminal complaint cases before the High Court, taking factual defences. Whether the cheques were given as security or not, or whether there was outstanding liability or not is a question of fact which could have been determined only by the trial court after recording evidence of the parties. In our opinion, the High Court should not have expressed its view on the disputed questions of fact in a petition under Section 482 of the Code of Criminal Procedure, to come to a conclusion that the offence is not made out. The High Court has erred in law in going into the factual aspects of the matter which were not admitted between the parties. The High Court further erred in observing that Section 138(b) of the NI Act stood uncomplied with, even though Respondent 1 (accused) had admitted that he replied to the notice issued by the complainant. Also, the fact, as to whether the signatory of demand notice was authorised by the complainant company or not, could not have been examined by the High Court in its jurisdiction under Section 482 of the Code of Criminal Procedure when such plea was controverted by the complainant before it.

11. In Suryalakshmi Cotton Mills Ltd. v. Rajvir Industries Ltd. [(2008) 13 SCC 678], this Court has made the following observations explaining the parameters of jurisdiction of the High Court in exercising its jurisdiction under Section 482 of the

(2016) 10 Supreme Court Cases 458

SKS,J CRIMINAL PETITION Nos.6200 and 6201 of 2022

Code of Criminal Procedure: (SCC pp. 685-87, paras 17 & 22)

"17. The parameters of jurisdiction of the High Court in exercising its jurisdiction under Section 482 of the Code of Criminal Procedure is now well settled. Although it is of wide amplitude, a great deal of caution is also required in its exercise.

What is required is application of the well- known legal principles involved in the matter.

22. Ordinarily, a defence of an accused although appears to be plausible should not be taken into consideration for exercise of the said jurisdiction. Yet again, the High Court at that stage would not ordinarily enter into a disputed question of fact. It, however, does not mean that documents of unimpeachable character should not be taken into consideration at any cost for the purpose of finding out as to whether continuance of the criminal proceedings would amount to an abuse of process of court or that the complaint petition is filed for causing mere harassment to the accused. While we are not oblivious of the fact that although a large number of disputes should ordinarily be determined only by the civil courts, but criminal cases are filed only for achieving the ultimate goal, namely, to force the accused to pay the amount due to the complainant immediately. The courts on the one hand should not encourage such a practice; but, on the other, cannot also travel beyond its jurisdiction to interfere with the proceeding which is otherwise genuine. The courts cannot also lose sight of the fact that in certain matters, both civil proceedings and criminal proceedings would be maintainable."

12. In Rallis India Ltd. v.

PoduruVidyaBhushan [(2011) 13 SCC 88],

SKS,J CRIMINAL PETITION Nos.6200 and 6201 of 2022

this Court expressed its views on this point as under: (SCC p. 93, para 12)

"12. At the threshold, the High Court should not have interfered with the cognizance of the complaints having been taken by the trial court. The High Court could not have discharged the respondents of the said liability at the threshold. Unless the parties are given opportunity to lead evidence, it is not possible to come to a definite conclusion as to what was the date when the earlier partnership was dissolved and since what date the respondents ceased to be the partners of the firm."

16. As is clear from the above observations of this Court, it is well settled that while dealing with a quashing petition, the Court has ordinarily to proceed on the basis of averments in the complaint. The defence of the accused cannot be considered at this stage. The court considering the prayer for quashing does not adjudicate upon a disputed question of fact."

(Emphasis supplied)

12. In case of Rathish Babu Unnikrishnan v. State (Govt.

of NCT of Delhi) and Another 5, at paragraph Nos.14 to 17 the

Apex Court observed as under:

"14. The parameters for invoking the inherent jurisdiction of the Court to quash the criminal proceedings under S.482 CrPC, have been spelled out by Justice S. Ratnavel Pandian for the two judges' bench in State of Haryana v. Bhajan Lal, and the suggested precautionary principles serve as good law even today, for invocation of power under Section 482 of the Cr.P.C.

2022 SCC Online SC 513

SKS,J CRIMINAL PETITION Nos.6200 and 6201 of 2022

"103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice."

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 (supra), 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 CrPC, 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."

16. The proposition of law as set out above makes it abundantly clear that the Court should be slow to grant the relief of quashing a complaint at a pre-trial stage, when the factual controversy is in the realm of possibility particularly because of the legal presumption, as in this matter. What is also of note is that the factual defence without having to adduce any evidence need to be of an unimpeachable quality, so as

SKS,J CRIMINAL PETITION Nos.6200 and 6201 of 2022

to altogether disprove the allegations made in the complaint.

17. The consequences of scuttling the criminal process at a pre-trial stage can be grave and irreparable.Quashing proceedings at preliminary stages will result in finality without the parties having had an opportunity to adduce evidence and the consequence then is that the proper forum i.e., the trial Court is ousted from weighing the material evidence. If this is allowed, the accused may be given an un-merited advantage in the criminal process. Also because of the legal presumption, when the cheque and the signature are not disputed by the appellant, the balance of convenience at this stage is in favour of the complainant/prosecution, as the accused will have due opportunity to adduce defence evidence during the trial, to rebut the presumption."

(Emphasis Supplied)

13. In the case on hand, the dispute between the parties

arises out of agreement between the parties and the same has

tobe decided is that whether there is any legal enforceable debt

on behalf of the petitioners and the said cheque issued towards

discharge of liability or as security. Pertinently, the illegal

uniformities has to be decided by the trial Court and this Court

cannot conduct mini trial while dealing with the petitions filed

under Section 482 of Cr.P.C., as such, the allegations requires

trial. In view of the same and the law laid down by the Apex

Court in Sunil Todi (Supra 3), Sampelly Satyanarayana Rao

(Supra 4) and Rathish Babu Unnikrishnan (Supra 5), since the