Andhra HC (Pre-Telangana)
Akula Siva Durga Prasad vs State Of A.P. And Ors. on 6 November, 2002
Equivalent citations: 2003(1)ALD(CRI)147, II(2003)BC242
ORDER C.Y. Somayajulu, J.
1. This is an application to quash the proceedings in C.C. No. 594 of 1999 on the file of the Court of I Additional Judicial First Class Magistrate, Khammam, instituted by respondents 2 and 3 against the petitioner for an offence under Section 138 of the Negotiable Instruments Act (for short 'the Act').
2. Respondents 2 and 3 filed a private complaint against the petitioner under Section 13 8 of the Act alleging that the petitioner having induced them to part with Rs. 1,50,000/- and Rs. 10,00,000/-, ostensibly for purpose of incorporating and running of a company, utilised the money for himself and on their demand for repayment of the money he executed a letter dated 2.8.1999 promising to repay the amount of Rs. 11,50,000/- within three months and handed over a post-dated cheque dated 2.9.1999 drawn in favour of the second respondent of Rs. 5,00,000/- towards part payment of the amount due, and promised to pay the balance amount of Rs. 6,50,000/- before 30.10.1999, and when the cheque dated 2.9.1999, was presented for payment, it was dishonoureu, and in spite of statutory notice petitioner failed to pay the amount covered by the dishonoured cheque.
3. The contention of the learned Counsel for petitioner is that since the cheque dated 2.9.1999 was drawn in favour of the second respondent only complaint filed by respondents 2 and 3 is not maintainable, in view of Section 142 of the Act which mandates that complaint for an offence under Section 138 of the Act can be filed only by the payee or holder in due course of the bounced cheque, and since the third respondent is neither a payee nor a holder in due course of the cheque, the complaint filed by him along with second respondent is liable to be quashed. No doubt, Section 142 of the Act lays down that cognizance for an offence under Section 138 of the Act can be taken only on a complaint in writing made by the payee or the holder in due course of the dishonoured cheque. The cheque in this case admittedly was drawn in favour of the second respondent, who is the first complainant. The fact that the third respondent also figured as second complainant in the petition does not clothe the petitioner with a right to seek quashing the complaint against him. If petitioner feels inconvenienced by the presence of the 3rd petitioner or 2nd complainant, at best he may seek a direction from the Court to remove the name of 3rd respondent from the array of complainants.
4. The averments in the complaint show that dishonoured cheque was issued in the name of 2nd respondent towards the liability due from the petitioner to both respondents 2 and 3, as per his letter dated 2.8.1999. Since an offence under Section 138 of the Act can be made out only in case if the bounced cheque was issued towards discharge of a legally existing liability, probably under an impression that 3rd respondent also should figure as a complain ant both respondents 2 and 3 must have jointly filed the complaint. Petitioner is not prejudiced by the 3rd respondent, a joint promisee along with the 2nd respondent, joining the 2nd respondent in filing the complaint. If a total stranger to the transaction is shown as one of the complainant along with the 2nd respondent petitioner could be heard to say that he need not defend himself against the prosecution launched by an utter stranger. When petitioner has a liability to discharge to respondents 2 and 3 and when in partial discharge of the liability due to them he issued the dishonoured cheque in the name of 2nd respondent, one of the joint creditors he cannot be heard to say that 3rd respondent joining the 2nd respondent in filing the complaint against him is improper and that his liability for the offence vanished in view of the 3rd respondent also figuring as a complainant along with the 2nd respondent. So, I find no merit in this petition. Petition is dismissed.