Yakkala Venkata Sesshaih v. Gudiwada Prabhavathi

- Petitioner, who is a practicing advocate, in transfer criminal petition No.90 of 2008 seeks to transfer C.C.No.124 of 2007 pending on the file of Judicial Magistrate of First Class, Prohibition & Excise,

Guntur to the Court of II Additional Judicial Magistrate of First Class, Nellore, to be tried along with C.C.No.474 of 2008 pending on the file of II Additional Judicial Magistrate of First Class, Nellore. Whereas accused Nos.1 to 3 and 4 in C.C.No.474 of 2008 filed criminal petition Nos.6789 of 2008 and 1432 of 2009 respectively, under Section 482 of Code of Criminal Procedure, 1973 (for brevity, “Cr.P.C.”) to quash the proceedings initiated by the petitioner in transfer criminal petition No.90 of 2008. Hence all the three petitions were heard together and are disposed of by this common order. Respondent No.1 in transfer criminal petition is the complainant in C.C.No.124 of 2007, filed for the offences punishable under Sections 138 and 142 of Negotiable Instruments Act, 1881 (for brevity, ” N.I.Act”) before the Judicial Magistrate of First Class (Prohibition and Excise), Guntur alleging that the accused representing that he is the owner of Flat No.24 in Anjanadri Block of Swamiji Apartments, Guntur, offered to sell the same, for which the complainant agreed to purchase for a sum Rs.7,10,000/- and the accused received Rs.1,50,000/- as advance from the complainant and passed a receipt in favour of the complainant. Subsequently, the accused received another sum of Rs.1,00,000/- from the complainant and executed a letter of confirmation of advance receipt. When the complainant offered to pay the balance and asked to register the flat, the accused demanded for payment of extra amount. On coming to know that the accused sold the flat offered to the complainant to others, the complainant questioned the accused about the same and in turn the accused promised to return the advance amount and accordingly, issued a cheque for Rs.2,92,500/- under cheque bearing No.724486, dated 12.02.2006 drawn on Canara Bank, Nellore towards full and final settlement. When the said cheque was presented by the complainant with her banker Andhra Bank, J.K.C.College, Guntur on

01.03.2006, the same was returned with an endorsement ‘insufficient funds’. After issuing notice, the above complaint came to be filed by the complainant for the offences punishable under sections 138 and 142 of N.I.Act. On filing the above complaint, the petitioner, who is accused in the above C.C., filed a private complaint in C.C.No.474 of 2008 before II Additional Judicial Magistrate of First Class, Nellore against the complainant, who is arrayed as accused No.4 and others, for the offences punishable under Sections 409, 420 & 468 IPC r/w 34 of the Indian Penal Code (for brevity, ‘IPC”) and Section 190 & 200 of Cr.P.C. The Learned Magistrate took cognizance of the said offences against accused Nos.1 to 4 and issued summons them. Questioning the same, accused Nos.1 to 3 filed Crl.P.No.6189 of 2008 and accused No.4 filed Crl.P.No.1435 of 2009. Sri T.C.Krishnan, learned counsel for the petitioner in transfer criminal petition, contends that there is a civil dispute pending between the parties.

It is submitted that the daughter of the petitioner in transfer criminal petition/the complainant in C.C.No.474 of 2008 filed O.S.No.21 of 2007 on the file of I Additional District Judge, Nellore for recovery of Rs.2,00,000/- against G.Venkateswara Rao, who is the promoter of the apartments and his wife G.Padmaja, who is one of the directors of M/s.Chunduri Chit Funds Co. Ltd., Nellore. As a counter blast to the same, the above complaint in C.C.No.124 of 2007 is filed for the offence punishable under Section 138 of N.I.Act. On coming to know about the said complaint, the petitioner in transfer criminal petition filed C.C.No.474 of 2008 for the offences punishable under Sections 409, 420 & 468 IPC r/w 34 IPC and Section 190 & 200 of Cr.P.C., which was taken cognizance of by II Additional Judicial Magistrate of First Class at Nellore. Therefore, C.C.No.124 of 2007 pending on the file of Judicial Magistrate of First Class, Prohibition & Excise, Guntur has to be transferred to the Court of II Additional Judicial Magistrate of First Class, Nellore, to be tried along with C.C.No.474 of 2008, pending on the file of II Additional Judicial Magistrate of First class, Nellore.

Sri Venkateswarlu Sanisetty, learned counsel for the petitioner in Crl.P.No.6789 of 2008/accused Nos.1 to 3 in C.C.No.484 of 2008, contends that in the absence of any inducement made by the accused in C.C.No.474 of 2008, taking cognizance of the case for the offences punishable under Sections 409, 420 & 468 r/w 34 IPC on filing complaint under Sections 190 & 200 of Cr.P.C., by the Magistrate is totally non-application. Further Section 195 of Cr.P.C. bars taking cognisance of the case for the offence under Section 463 IPC. Therefore, the entire complaint in C.C.No.474 of 2008 is liable to be quashed. Sri Nageswar Rao Palle, learned counsel for the petitioner in Crl.P.No.1432 of 2009/accused No.4 in C.C.No.474 of 2008, who is the complainant in C.C.No.124 of 2007, adopted the arguments of Sri Venkateswarlu Sanisetty. Regarding the question of jurisdiction for the offence under Section 138 N.I.Act, the Hon’ble Supreme Court in K. Bhaskaran v.

Sankaran Vaidhyan Balan[1] held as follows: - “14. The offence under Section 138 of the Act can be completed only with the con-catenation of a number of acts. Following are the acts which are components of the said offence : (1) Drawing of the cheque, (2) Presentation of the cheque to the bank, (3) Returning the cheque unpaid by the drawee bank, (4) Giving notice in writing to the drawer of the cheque demanding payment of the cheque amount, (5) failure of the drawer to make payment within 15 days of the receipt of the notice.

It is not necessary that all the above five acts should have been perpetrated at the same locality. It is possible that each of those five acts could be done at 5 different localities. But concatenation of all the above five is a sine qua non for the completion of the offence under Section 138 of the Act. In this context a reference to Section 178(d) of the Code is useful. It is extracted below : "Where the offence consists of several acts done in different local areas, it may be inquired into or tried by a Court having jurisdiction over any of such local areas. "

Thus it is clear, if the five different acts were done in five different localities any one of the Courts exercising jurisdiction in one of the five local areas can become the place of trial for the offence under Section 138 of the Act. In other words, the complainant can choose any one of those Courts having jurisdiction over any one of the local areas within the territorial limits of which any one of those five acts was done. As the amplitude stands so widened and so expansive it is an idle exercise to raise jurisdictional question regarding the offence under Section 138 of the Act.” Admittedly, the complainant in C.C.No.124 of 2007, presented the cheque with her banker at Guntur on 01.03.2006 and it was returned with an endorsement insufficient funds and she issued a registered notice for payment of the amount due under the cheque and received reply notice at Guntur sent by the petitioner.

2007. Since there are some financial disputes regarding the amounts due by accused No.3 namely G.Venkateswara Rao to the daughters of the complainant and when the daughters of the complainant filed O.S.No.21 of 2007, one of the cheques were pressed into service to take vengeance against the complainant, which was presented through A4. It is nothing but a short of forgery in furtherance of common intention. Therefore, A1 to A3 misutilised the cheques, which were entrusted to them during the years 1999 and 2000 and got filed the above frivolous complaint against accused No.4 and cheated the complainant for the offence punishable under Section 420 r/w 34 IPC. When the cheques were issued in the year 1999 to A1 and A2, they were pressed into service in the year 2006 and hence they are liable to be proceeded under Section 468 IPC intending to commit forgery knowing that the document shall be used for the purpose of cheating.

In view of the specific averments made in the complaint, which was taken cognizance, the complainant has to be given an opportunity to establish a case. It is now fairly well settled that that the civil disputes may also lead to criminal offences and such disputes have to be entertained notwithstanding the fact that there are civil disputes pending. In the case on hand, the complainant has not denied the issuance of the cheque. Under Section 467 IPC whoever forges a document which purports to be a valuable security shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine. Section 471 specifies whoever fraudulently or dishonestly uses as genuine any document which he knows or has reason to believe to be a forged document, shall be punished in the same manner as if he had forged such document.

Section 470 IPC defines forged document, which defines that a false document made wholly or in part by forgery is designated as a forged document. The term forgery used in two sections namely Sections 467 and 468 IPC is defined in Section 463 IPC, which means whoever makes any false documents to the public or to any person or with intent to commit fraud or that fraud may be committed, commits forgery. Illustrations (c) and (d) to Section 464 IPC clearly discloses that when a blank cheque is filled up fraudulently by inserting the sum of money, it amounts to committing forgery. In view of the same, the complainant should be given an opportunity to prove the case of forgery during the trial. I do not see any grounds to quash the proceedings in both the criminal petitions and hence, they are liable to be dismissed. Accordingly, the transfer criminal petition, Crl.P.No.6789 of 2008 and Crl.P.No.1432 of 2009 are dismissed. _______________ A.GOPAL REDDY, J 24th June 2010 [1] AIR 1999 S.C. 3762