Judgment · High Court

- This petition, under Section 482 Cr.P.C., is filed by the petitioner-A.3 to quash the proceedings against him in STC.No.416 of

2012 on the file of the II Additional Judicial First Class Magistrate, Tirupati.

The brief facts that are necessary for disposal of the present Criminal Petition may be stated as follows: The accused is doing business in promotion of designated number of the network of Franchises in part of Ranga Reddy District (for 6 mandals), Nalgonda, Mahabub Nagar and Medak Districts under the common services centres scheme launched by the Government of A.P., acting as its Business Development Representative (BDR); that the complainant contacted the accused for sub contract; that an agreement was entered into between the accused and complainant and the complainant paid Rs.36,50,000-00 by way of three cheques; that as the business was not financially feasible, cancellation agreement was entered into between the parties; that in pursuance of the said cancellation agreement, the accused issued two cheques dated 04.04.2010 and 04.05.2010 for a sum of Rs.15,00,000- 00 each and that when the complainant presented the above cheques for collection in the bank, they were returned with an endorsement ‘funds insufficient’; that after giving statutory notice, as the accused failed to pay the amount covered under the cheques in question, the present complaint is filed.

The learned counsel for the petitioner contended that as the petitioner is not a signatory to the cheques and also not a member of the Society by the date of issuance of the subject cheques and as per the General Body Meeting dated 01.09.2004, the petitioner’s resignation was accepted, the continuation of proceedings against him is nothing but abuse of process of Court.

Section 138 of the Act deals with ‘dishonour of cheque for insufficiency, etc. of funds in the account. Necessary ingredients to be established by the complainant are : (a) a cheque is 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 in the discharge in whole or in part of any debt or other liability; (b) the cheque is returned by the bank unpaid either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank; (c) 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; (d) The payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer of the cheque within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid, and (e) The drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.

If uncontroverted allegations in the complaint made out a prima facie case for the offence under Section 138 of the Act, the question of quashing the complaint does not arise. The only ground taken by the learned counsel for the petitioner is that the petitioner is neither a member of the Society by the date of issuance of the cheques nor signatory on the cheques. Whether the petitioner is a member of the society or not is a question of fact to be decided after adducing necessary evidence before the trial Court. The question of fact cannot be resolved exercising powers under Section 482 Cr.P.C.

Inherent powers under Section 482 Cr.P.C can be exercised when there is Abuse of process of Court or to secure ends of justice or to carry out the orders passed in the Court. The case of the present petition does not fall under anyone of the three categories. Hence having regard to the limitations placed on the power of this Court under Section 482 Cr.P.C, to interfere in matters like this, this Court is of the opinion that this petition is liable to be dismissed.

Accordingly, for the aforesaid reasons, the Criminal Petition is dismissed. Miscellaneous petition pending in this criminal petition shall stand dismissed.

16.11.2012 VJL ____________________ JUSTICE K.C. BHANU