Criminal Petition No. 5259 of 2007. Case: J. Vidya Sagar S/o. L.J. Rajam Vs The State of A.p., rep. by its Public Prosecutor, High Court of A.P. and Smt. B. Rushendra Mani W/o. Laxminarayana. High Court of Andhra Pradesh (India)
| Case Number | Criminal Petition No. 5259 of 2007 |
| Judges | B. Chandra Kumar, J. |
| Issue | Indian Panel Code - Sections 406, 415, 417 and 420; Negotiable Instruments Act, 1881 - Sections 12, 138, 142 and 156(3); Criminal Procedure Code (Cr.P.C.) - Sections 4, 5 and 200 |
| Judgement Date | April 28, 2010 |
| Court | High Court of Andhra Pradesh (India) |
Order:
B. Chandra Kumar, J., (At Hyderabad)
1. This Criminal Petition has been filed to quash the proceedings in C.C. No. 437 of 2005 on the file of the Additional Judicial First Class Magistrate, East and North, R.R. District, transferred to X Metropolitan Magistrate, Malkajgiri, R.R. District.
2. The brief facts of the case are as follows:
The second respondent herein filed a complaint alleging that he is one of the partners in Sai Chakra Financers and Yogeshwara Financers and that the partners were not in a position to uphold the trust of the managing partners and therefore, the firm was dissolved, accounts were settled and a memorandum of understanding was reached between the parties on 05-06-2001. Due amounts to be paid by the Firm and to be received by the Firm were distributed among the partners. In pursuance of the said memorandum of understanding, the second respondent approached the petitioner for the payment of the due amount to be paid to him and the petitioner issued a cheque bearing No. 081308, dated 13-05-2002 for Rs. 3,85,000/-of Central Bank, Himayatnagar branch. When the said cheque was presented in the bank of the second respondent i.e., ICICI Bank, Vasavinagar branch, the second respondent received an intimation that the account was closed. The second respondent lodged a complaint against the petitioner alleging that the petitioner issued a false cheque and closed the account without any intimation with an intention to cheat him and to avoid the payment. Basing on the said complaint, a case was registered in Crime No. 251 of 2002 on 05-06-2002 for the offences punishable under Sections 420 of IPC and 138 of the Negotiable Instruments Act, 1881 (for short 'the Act').
3. The stand of the petitioner is that he had approached Sai Chakra Financers and Yogeshwara Financers and availed the loan and executed the promissory note and issued a blank cheque and subsequently, he had paid the entire loan amount with interest within the stipulated time and when he requested to return the promissory note and blank cheque, the second respondent represented that the promissory note and the blank cheque were misplaced and assured that they will be returned to him as and when found.
4. The Learned Counsel for the petitioner submits that the police are not authorized to investigate into a case filed for the offence under Sections 138 of the Act. He further submitted that even if the allegations made in the complaint are taken at their face value and accepted in their entirety, they did not prima facie constitute any offence or make out a case against the petitioner.
5. No representation for the second respondent, though notice was served.
6. In the light of the facts and circumstances, the only points that arise for consideration are:
1. Whether the police are empowered to file charge sheet for the offence punishable under Section 138 of the Act? and
2. Whether the ingredients of Section 420 of IPC have been made out from the contents of the charge sheet?
7. Section 138 of the Act is as follows:
Section 138. Dishonour of cheque for insufficiency, etc., of funds in the accounts.
Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid...
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