Andhra HC (Pre-Telangana)
P.T.V. Ramanujachari vs Giridharilal Rathi And Anr. on 20 February, 1991
Equivalent citations: 1991(2)ALT10, [1992]73COMPCAS421(AP)
JUDGMENT N.D. Patnaik, J.
1. The petitioner who is the accused in C.C. No. 372 of 1990 in the Court of the IV Metropolitan Magistrate, Hyderabad, has filed this petition under section 482, Criminal Procedure Code, to quash the proceedings. That case was filed on a complaint instituted by the first respondent under section 138 of the Negotiable Instruments Act. The allegations in the complaint in brief are that the petitioner who is the accused therein had given a cheque in favour the complainant on March 31, 1990, on the Canara Bank, Sultan Bazaar, Hyderabad, for an amount of Rs. 5,45,000 and when the complainant presented the cheque to his bankers for collection, the said cheque was dishonoured by the Canara Bank. The complainants has issued a notice as required by section 138(a) of the Negotiable Instrument Act and though the accused received the notice, he did not send the amount but sent an untenable reply.
2. Learned counsel for the petitioner (accused) has stated that the petitioner opened an account with the Canara bank, Sultan Bazar Branch, Hyderabad, on September 24, 1984, in the name of Srikrishna and Co. He was operating the account and closed it on October 24, 1988. The petitioner was supplied with a cheque-book by the bank. He was in the habit of carrying a loose blank cheque duly signed whenever he was going cut in connection with his business in order to facilitate easy drawal of money and, while he was so carrying one loose cheque in 1984, that cheque was lost and he intimated the Canara Bank by letter dated November 16, 1984, that cheque No. CCBP 8272929 was lost and requested the bank to stop payment. The petitioner further alleges that the complainants might have got possession of the blank cheque and filled it up in his name for Rs. 5,45,000 but in fact, he is not due to pay that amount to the complainant.
3. On the other hand, the contention of the complainant (first respondent herein) is that petitioner owes him Rs. 5,45,000 for which he gave the cheque, bearing No. CCBP 8272929, dated March 31, 1990, and, when he presented it for collection, the Canara Bank had returned it without honouring it. Section 138(a) of the Negotiable Instruments Act which was inserted by an amendment in 1988 reads as follows :
"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, either because the amount of money standing to the credit of that account is insufficient to honour the cheque or it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may extend to one year, or with fine which may extend to twice the amount of the cheque, or with both :
Provided that nothing contained in this section shall apply unless -
(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;"
4. In this case, there are several questions of fact which have to be decided by the trial court upon evidence which may be adduced by both the parties. They are as follows :
(a) Whether the accused gave the cheque on March 31, 1990, to the complainant for a sum of Rs. 5,45,000 due by him,
(b) Whether the accused was in the habit of carrying loose sheets of the cheque book in his pocket having been duly signed by him and lost the cheque in the year 1984.
(c) Whether he has advised the bank to stop payment of the cheque.
(d) Whether the accused closed the account in the bank in the year 1988 and issued the cheque even after closing the account.
5. The petitioner has filed xerox copies of some documents to show that he had sent a letter on November 16, 1984, to the bank requesting them to stop payment. He had also filed xerox of some other letters.
6. Learned counsel for the complainant contended that it is quite possible that, for the purpose of this case, the accused might have brought into existence this letter dated November 16, 1984. In the letter dated August 13, 1990, addressed by the accused to the bank, he has referred to the letter dated November 16, 1984, and asked the bank to send him the copy. But the bank, in its reply dated September 1, 1990, stated that there is no record in their branch to confirm the receipt of his letter dated November 16, 1984. The Canara Bank returned the cheque with a memo. In that they have given three reasons for returning the cheque which are as follows :
(1) Refer to drawer, (2) Do not present cheque again, and (3) Informed over phone to Mr. S. N. Sastry, Assistant Manager.
7. Though there is one column, viz., "payment stopped by the drawer" in that memo, the bank did not tick that column. Therefore, the question whether the accused had stopped payment of the cheque is a matter which has to be decided on evidence by summoning the bank officials and providing the documents. It cannot be decided by perusing the xerox copies of documents of which the complainant is not aware. I feel it is not desirable for this court to make any comment regarding those documents which may have the effect of influencing the trial court. Learned counsel for the petitioner-accused has referred to certain decisions regarding interpretation of the penal provisions. But unless the facts are first are first established, the question of application of decisions will not arise. In this case, the allegations of the complainant, if proved, make out an offence under section 138(a) of the Negotiable Instruments Act. The petitioner has also referred to a suit filed before the Subordinate Judge, Tadepalligudem, by Sri Krishna and Co., Tadepalligudem, against Venkatesh Paper Syndicate, Hyderabad, and another, viz., Shri Vishnukant Rathi, the son of the complainant, for some amount due and this complaint is filed as a counter-blast to that suit.
8. As I have stated above, the question whether the accused had to pay the money to the complainant and whether the complainant had issued the cheque as well as all other questions of fact have to be established on evidence. It is a matter of evidence whether the complainant is able to establish the various allegations. Therefore, there are no grounds to quash the proceedings under section 482, Criminal Procedure Code. The petition is dismissed.