Telangana High Court
Mr. Syed Asim Fardeen vs The State Of Telangana on 29 November, 2022
HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL PETITION No.896 OF 2022
ORDER:
1. This Criminal Petition is filed to quash the proceedings against the petitioner/accused in STC NI.No.787 of 2021 on the file of VI Metropolitan Magistrate, Hyderabad.
2. Briefly, the facts of the case are that the petitioner/accused towards repayment of loan issued cheque bearing No.499516 dated 27.07.2021, drawn on Andhra Bank, Mehdipatnam Branch, Hyderabad. The said cheque when presented for realizing the amount, banker Axis Bank returned the same with an endorsement "instrument undated without proper date and 'non CTS cheque' on 29.07.2021. According to the complaint, when the complainant enquired, the bank officials intimated that it was on account of 'funds insufficient'.
3. Learned counsel appearing for the petitioner would submit that receipt-cum-undertaking was filed by the complaint in which it is mentioned that post dated cheques of Andhra Bank, Mehdipatnam Branch bearing account number 2 085410100115343 and cheque numbers 499512, 499513, 499514, 499515, 499516, 499517, 499518, 499519, 499520 totalling 9 cheques were given by this petitioner. Receipt-cum- undertaking stamp paper is dated 29.05.2012 as such the prosecution cannot be maintained for the reason of the debt being barred by limitation.
4. Learned counsel further argued that the accused addressed a letter to Axis Bank and the authorized person from Axis Bank replied by letter dated 19.01.022 stating as follows:
"Sir, Referring to your notice dated 14.01.2022, asking us for clarification of the cheque return memo for the return of the cheque no.499516, please find below our clarification.
An outward clearing cheue no.499516, for Rs.15,00,000/- was deposited on 28.07.2021 in account number 921010029038599 maintained in the name of SYED SHUJAUDDIN.
We would like to clarify that the reason for that cheque return is "Non-CTS Cheque". We have issued the memo with the same reason to the customer. In your above mentioned notice it has been mentioned that Bank has issue return memo with reason as "insufficient Funds", however same is incorrect."3
5. As seen from the letter, the complainant has fabricated the cheque return memo. For all these reasons, proceedings have to be quashed.
6. On the other hand, learned counsel for the complainant would submit that these are all questions of fact which can only be decided by the trial court and an opportunity has to be given to the complainant to adduce evidence.
7. Having perused the documents, the undated receipt- cum-undertaking (stamp paper is dated 29.05.2012) and also the letter issued by the Bank dated 19.01.2022 are not disputed. It is specifically mentioned in the stamp paper dated 29.05.2012 that amount of Rs.15,00,000/- was received by the petitioner/ accused and nine post dated cheques including the present cheque were issued towards repayment. The entire complaint is silent as to what transpired in between 29.05.2012 till the date of filing of complaint in the month of October, 2021.
4
8. When there is no explanation regarding the transactions in between complainant and petitioner for the said 10 years, the cheque is hopelessly barred by limitation.
9. Further, the prosecution under Section 138 of the Negotiable Instruments Act cannot be launched when the Bank returned the cheque for the reason of the cheque being a non CTS cheque. Specifically, the Bank by letter dated 19.01.2022 clarified that in the cheque return memo it was not mentioned that the cheque was returned as 'insufficient funds'. Apparently the memo was fabricated by complainant. For the above discussed reasons, the prosecution cannot be continued against the petitioner/accused.
10. Accordingly, the Criminal Petition is allowed and the proceedings against the petitioner-accused in STC NI.No.787 of 2021 on the file of the Court of the VI Metropolitan Magistrate, Hyderabad, are hereby quashed.
__________________ K.SURENDER, J Date: 29.11.2022 kvs 5 HON'BLE SRI JUSTICE K.SURENDER CRIMINAL PETITOIN No.896 OF 2022 Date: 29.11.2022.
kvs 6