Smt. Peddu Bhavani & Anr. v. Rainbow, a division of Ushakiron Movies Limited, Ramoji Film City, Hyderabad & Anr.

THE HON’BLE SRI JUSTICE N.RAVI SHANKAR CRIMINAL PETITION NO.6927 OF 2008 ORDER: Heard Sri V.Venugopala Rao, learned counsel for the petitioners, Sri B.Nalin Kumar, learned counsel for the first respondent and learned Additional Public Prosecutor.

The petitioners herein are accused 1 and 2 in C.C.No.2585 of 2005 on the file of the Court of VII Metropolitan Magistrate, Hayathnagar, Ranga Reddy District (trial court). They filed this petition under Section 482 of Code of Criminal Procedure, 1973 for quashing the aforesaid case against them. The offence alleged against them is one punishable under Section 420 of Indian Penal Code, 1860 (IPC).

A perusal of the allegations in the charge-sheet would show that the petitioners produced a feature film and for that purpose engaged the services of the complainant and fell due a sum of Rs.23,16,198/-. It is stated that the second petitioner who is the husband of the first petitioner gave two cheques both dated 6.12.2003 for a sum of Rs.10,00,000/- each drawn on Andhra Bank, Jubilee Hills, Hyderabad towards repayment of the above amount. It is further stated that out of the two cheques, the cheque bearing No.775602 was presented in December 2003 and was dishonoured and therefore the complainant C.C.No.144 of 2004 in the trial court itself for an offence under Section 138 of the Negotiable Instruments Act, 1881 (for short Act). It is then stated in the complaint that subsequently on 14.1.2004 the other cheque bearing No.775601 was presented for encashment and that too was dishonoured and for that dishonour the present complaint is filed.

The main contention of the learned counsel for petitioners is that the complainant should have filed the complaint for the above dishonour only for an offence punishable under Section 138 of the Act since mere dishonour of a cheque does not amount to cheating and therefore the present complaint for the offence punishable under Section 420 IPC is not maintainable and it should be quashed.

It may be noted that in M/s. OPTS Marketing Pvt. Ltd. v. State of [1] A.P. , a Full Bench of this court held that

even after introduction of Section 138 of the Act, prosecution under Section 420 IPC is maintainable in case of dishonour of cheques or postdated cheques issued towards payment of price of the goods purchased or hand loan taken, or in discharge of an antecedent debt or towards payment of goods supplied earlier, if the charge sheet contains an allegation that the accused had dishonest intention not to pay even at the time of issuance of the cheque, and the act of issuing the cheque, which was dishonoured, caused damage to his mind, body or reputation. Private compliant or FIR alleging offence under Sec.420 IPC for dishonour of cheques or postdated cheques cannot be quashed under Sec.482 Cr.P.C. if the averments in the compliant show that the accused had, with a dishonest intention and to cause damage to his mind, body or reputation, issued the cheque which was not honoured

. In the present case, the allegations in the complaint do disclose the offence of cheating inasmuch as they read that even at the time of issuing the present cheque in question, the petitioners have no intention to pay the amount. In these circumstances, it follows that the present compliant is maintainable.

So far as the question whether the allegations relating to cheating are true or not is concerned, that is a disputed question of fact which cannot be gone into in this petition. Accordingly, the relief for quashing the F.I.R. is rejected.

It is brought to my notice that the first petitioner is a lady and she cannot attend the court for every date of hearing. In the circumstances, the presence of the first petitioner for every date of hearing before the trial Court is dispensed with subject of course to the power of the trial court to summon her presence as and when it considers necessary.