Allowed

Y.Siva Prasad v. State of Ap

Andhra Pradesh HC8 Sept 2024CRLP/3364/2019

Case brief

AI extract

What is this about?

The High Court of Andhra Pradesh allowed a criminal petition under Section 482 Cr.P.C. quashing proceedings under Section 138 of the Negotiable Instruments Act. The court held that the complaint was not maintainable due to the non-joinder of the petitioner's father, the actual issuer of the cheques, rendering further proceedings an abuse of the process of the court.

What did the court decide?

Trial court proceedings in C.C. No. 220 of 2018 are quashed against the petitioner/accused.

Y.Siva Prasad Vs State of Ap — Cheque Dishonour | Andhra Pradesh HC (2024)

IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

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MONDAY, THE NINTH DAY OF SEPTEMBER TWO THOUSAND AND TWENTY FOUR

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PRESENT

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THE HONOURABLE SMT JUSTICE V.SUJATHA

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CRIMINAL PETITION NO: 3364 OF 2019

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Between:

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Yelagacharla Siva Prasad @ Y Siva Prasad Reddy, S/o.^YRanga Reddy, Permanent Resident of Nagaripadu Village and^post,Chitvel Mandal, YSR Kadapa District. Temporarily Residing at^Y.SivaPrasad Reddy, S/o Y.Ranga Reddy, M/s S.L.S. Infra Projects 307, 0pp. Tissue Centre teak Plants, Timmannaidu Palem Village, Karakambadi Road, Tirupati urban Mandal, Chittoor District.

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...Petitioner/Accused

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AND

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The State of Andhra Pradesh, Rep by its Public prosecutor. High Court at Amaravathi.

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...1®^ Respondent

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Cherukuri Rajaiah, S/o. Late Ch. Venkaiah Naidu, residing at D No 3-1, Flat No 2, Srinivasapuram, Tirupati Rural Mandal, Chittoor District, Andhra Pradesh

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...2"'^ Respondent/Complainants

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Petition under Section 482 of Cr.P.C praying that in the circumstances stated in the Memorandum of Grounds of Criminal Petition,

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the High Court may be pleased to quash the CC No 220/2018 pending on the file of the Hon’ble Special Magistrate cum VI Additional^JuniorCivil Judge, Tirupati against the petitioners herein/accused^{inthesaidC.C.}

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I.A. NO: 1 OF 2019

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Petition under Section 482 of Cr.P.C praying that in the circumstances stated in the Memorandum of Grounds of Criminal Petition, the High Court may be pleased to stay all further proceedings including appearance of the petitioner herein/accused in C.C. No. 220 of 2018, pending on the file of Special Magistrate-Cum-VI Additional^Junior Civil Judge, Tirupati, pending disposal of the above Criminal^Petition

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This Petition coming on for hearing, upon perusing^{theMemorandum} of Grounds of Criminal Petition and upon hearing the arguments of Sri B Chandra Shekhar, Advocate for the Petitioner and the Public Prosecutor on behalf of the Respondent No.1 and of Sri C H Venkat Raman, Advocate for the Respondent No.2

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The Court made the following:

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APHC010170192019

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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

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[3333]

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(Special Original Jurisdiction)

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MONDAY, THE NINTH DAY OF SEPTEMBER TWO THOUSAND AND TWENTY FOUR

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PRESENT

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THE HONOURABLE SMT JUSTICE V.SUJATHA

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CRIMINAL PETITION NO: 3364/2019

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Between:

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Y.siva Prasad

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...PETITIONER/ACCUSED

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AND

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State Of Ap and Others

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...RESPONDENT/COMPLAINANT(S)

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Counsel for the Petitioner/accused:

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1.B CHANDRA SHEKHAR

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Counsel for the Respondent/complainant(S):

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1.CH VENKAT RAMAN

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PUBLIC PROSECUTOR (AP)

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The Court made the following:

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Contd...

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VS,J Crl.PNo.3364 of 2019

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ORDER:

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This Criminal Petition is filed under Section 482 of Criminal Procedure Code (for short “Cr.P.C.”) to quash the proceedings^{inC.C.No.220of2018on} the file of the Special Magistrate - Cum - VI Additional Junior Civil Judge Tirupati, registered for the offence punishable under^{Section138r/w142of} the Negotiable Instruments Act.

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Petitioner herein is the accused, and Respondent No.2 is the defactocomplainant. The allegation against the accused are that he is engaged in contract works and in that connection for his urgent necessities, he borrowed a total sum of Rs.14,00,000/- from the 2^^ respondent in the first week of November, 2014 as a hand loan by promising to repay^{thesamewithinone} week, but failed to do so despite repeated demands. At last, accused issued two cheques bearing Nos.002128 and 939810 for a sum of Rs.5,00,000/- and Rs.9,00,000/- respectively, drawn on Dhanalakshmi Bank, Tirupati Branch, R.C Road, Tirupati and sent the same through his father^{on21.07.2016and} instructed to present them on 21.07.2016 and 25.07.2016 respectively. The 2^^ respondent presented those cheques through his banker i.e.. Syndicate Bank, Tirupati Main Branch, on 22.07.2016 for realization. Both cheques were returned on the same day with an endorsement “accounts^{closed”andthe2} nd respondent tried to inform the same to his father, but the father of the petitioner/accused was unreachable. Subsequently, the c/efacfo-complainant got issued a legal notice, however the said notice^{wasreturnedun-served.On} 10.04.2017, the accused met the 2^^^ respondent along with his younger

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Contd...

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VS,J CrI.P No. 3364 of 2019 3 hi

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brother Naveen, and requested to forgive for the previous^{returnedcheques} 17.04.2017 for a sum of Rs.22,40,000/-. and issued a new cheque on nd Accordingly, the 2 respondent presented the said cheque on 17.04.2017. 19.04.2017 with the same endorsement Again, the same was returned on “accounts closed”. The 2 nd respondent informed the same to the accused and of the entire debt, but the accused responded requested for payment evasively. On 27.04.2017, the 2"^ respondent again issued another legal notice to the petitioner/accused demanding repayment of the entire^amount to take covered by the cheques within 30 days, but the accused refused notice. Therefore, the accused is alleged to have committed an offence punishable under section 138 r/w 142 of the Negotiable Instruments Act, 1881. 3. The contention of the learned counsel for the petitioner/accused is there is no privity of contract between the petitioner and^{thecomplainantandthe} alleged debt is not supported by any document. He further^{contendedthatthe} alleged cheques were issued through the father of the^{accused,butheisnot} dated made as a party respondent to the said complainant. The cheque 25.07.2016 for an amount of Rs.9 lakhs seems to have presented on 22.07.2016 by the complainant i.e., which is prior^{tothedateofthecheque} dated 25.07.2016. There cannot be any continuity of^{legallyenforceabledebt} of earlier cheques under the provisions of Section^{138oftheActandthe} complaint of the complainant is silent as to how the^{saidamountofRs.14} lakhs was hiked to Rs.22,40,000/- and further submits^{thatthelegalnotices}

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Contd...

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VS,J Crl.PNo.3364 of 2019

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were sent to the wrong address and the complainant managed to return the said notices with a wrong endorsement, hence the service^ofnotice is not affected on the petitioner. And further that neither there is any legally enforceable debt supported by any documentary proof nor any relationship between the petitioner and the 2^^ respondent and on^{thedateofissuanceof} the alleged cheques as well as on the date of presentation of the said cheques, the petitioner is not in India and he is at^{UnitedStatesofAmerica} which is evident from the stamping in the passport. Hence, Section 138 of the Negotiable Act does not attract. Hence, prays to allow the petition.

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Having heard the submissions made by the learned counsel representing both parties and on perusal of the material^{availableonrecord} the point that arises for consideration is as follows:

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“Whether the proceedings against the petitioners in^C.CNo.220 of 2018 on the fiie of the Speciai Magistrate Cum VI^{AdditionalJunior} Civil Judge, Tirupati, are liable to be quashed by exercising jurisdiction under Section 482 of Cr.P.C.T

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The present petition has been filed under Section 482^ofCr.P.C.

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Section 482 of Cr.P.C saves the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under the Code or to prevent abuse of the process of any Court^{orotherwisetosecure} the ends of justice. It is an obvious proposition that when a Court has authority to make an order, it must have also power to carry^{thatorderintoeffect.} If an order can lawfully be made, it must be carried out;^otherwise it would be useless to make it. The authority of the Court exists^{fortheadvancementof}

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Contd...

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VS,J Crl.PNo.3364 of 2019 5

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justice, and if any attempt is made to abuse that authority so as to produce injustice, the Court must have power to prevent that^{abuse.Intheabsenceof} such power the administration of law would fail to serve the purpose for which alone the Court exists, namely to promote justice and to prevent injustice. Section 482 of Cr.P.C confers no new powers but merely safeguards existing powers possessed by the High Court. Such power has to be exercised sparingly in exceptional cases and this power is external^{innaturetomeetthe} ends of justice.

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Time and again, the scope of powers of this Court under^Section482of Cr.P.C. were highlighted by the Apex Court in long line of perspective pronouncements, which are as follows;

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In “R.P. Kapur v. State of Punjab 1.. the Apex Court laid down the following principles:

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(i) Where institution/continuance of criminal proceedings against an accused may amount to the abuse of the process of the court or that the quashing of the impugned proceedings would secure the ends of justice; (ii) where it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding, e.g. want of sanction; (iii) where the allegations in the First Information Report or the complaint taken at their face value and accepted in their entirety,^{donotconstitutethe} offence alleged; and

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(iv) where the allegations constitute an offence alleged^{butthereiseitherno} legal evidence adduced or evidence adduced clearly or manifestly fails to prove the charge.

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AIR I960 sc 866

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Contd...

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VS,J Crl.PNo.3364 of 2019

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Section 482 of the Code of Criminal Procedure empowers the High Court to exercise its inherent power to prevent abuse of the process of Court. In proceedings instituted on complaint exercise of^{theinherentpowertoquash} the proceedings is called for only in cases where the^{complaintdoesnot} disclose any offence or is frivolous, vexatious or^oppressive. If the allegations set out in the complaint do not constitute the offence^{ofwhichcognizance is} taken by the Magistrate it is open to the High Court^{toquashthesame} in exercise of the inherent powers under Section 482. It is not, however, necessary that there should be a meticulous analysis of the case,^{beforethetrialtofindout} whether the case would end in conviction or not. The complaint has to be read as a whole. If it appears on a consideration of the allegations, in the light of the statement on oath of the complainant that ingredients of the offence/offences are disclosed, and there is no material to show that the complaint is mala fide, frivolous or vexatious. In^{thateventtherewouldbeno} justification for interference by the High Court as^{heldbytheApexCourtin} “Mrs.Dhanalakshmi v. R.Prasanna Kumar^”

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In “State of Haryana v. Bhajan Lal^’’ the Apex Court^considered in detail the powers of High Court under Section 482 and^{thepoweroftheHigh} Court to quash criminal proceedings or FIR. The Apex^{Courtsummarizedthe} legal position by laying down the following guidelines^{tobefollowedbyHigh} Courts in exercise of their inherent powers to quash a criminal complaint:

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^ AIR 1990 SC 494 3 1992 Supp (1) see 335

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Contd...

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VS,J CrI.P No. 3364 of 2019

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(1) Where the allegations made ini the first information report or the taken at their face value and accepted in their entirety^do complaint, even if they are not prima facie constitute any offence or make out a case against^theaccused. (2) Where the allegations in the first information^{reportandothermaterials,} if the FIR do not disclose a cognizable offence, justifying an any, accompanying under Section 156(1) of the Code except under an investigation by police officers order of a Magistrate within the purview of Section^{155(2)oftheCode}

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(3) Where the allegations made in the FIR or complaint and the evidence do not disclose the commission of any offence and collected in support of the same make out a case against the accused.

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(4) Where, the allegations in the FIR do not constitute^{acognizableoffence} no investigation is permitted by a police but constitute only a non- cognizable offence, officer without an order of a Magistrate as contemplated^{underSection155(2)ofthe} Code.

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(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent^{personcaneverreachajust} conciusion that there is sufficient ground for proceeding^{againsttheaccused.}

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legal bar engrafted in any of the provisions of (6) Where there is an express the Code or the concerned Act (under which a criminal proceeding Is^{instituted)tothe} institution and continuance of the proceedings and/or where there is a specific concerned Act, providing efficacious redress for the provision in the Code or the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with^{anuiteriormotiveforwreaking} vengeance on the accused and with a view to spite him due to^{privateandpersonal} grudge. to examine the case 9. Keeping in view the above principles, 1 would like on hand.

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is no documentary 10. On a perusal of the record, it is observed that there evidence to establish the existence of a legal debt,^{noristhereanyevidence} of a relationship between the petitioner and that the cheques were issued by in turn was not made a party to the the father of the petitioner/ accused, who

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Contd...

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VS,J CrI.P No.3364 of 2019 •

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complaint filed by the 2^*^ respondent/complainant. Furthermore, the escalation of the debt amount from Rs.14,00,000/- to Rs.22,40,000/- raises a question about the continuity and validity of the debt and the^dates on which the cheques were issued, the petitioner is at United States of America, which is evident from the stamping in the passport.

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The learned counsel for the petitioner stated that the cheques were issued through the father of the petitioner/accused, who was not arrayed as a party and relied on the judgments reported in

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In Proddaturi Shobha Rani Shobha Rani, vs S.H.O., Dharmavaram

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Town P.S/, this Court held as follows:

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...8. Point No.1:- The concept of corporate criminal liability traces its origin to the doctrine "Respondent superior" which w'as widely propagated by the American Courts whereby an agent’s conduct was imputed to the Corporation. Respondent Superior means "let the master^{answer".InUnited} States, this doctrine was also called as "Master-Servant Rule" recognized in both common law and civil law jurisdictions. In a broader scope, respondent superior is based upon the concept of vicarious liability. Thus, historically this doctrine was applied in Master-Servant and Employer-Employee relationships. When employee or a servant committed a civil wrong against the third party, the employer or master could be held^{liablewhenthoseacts} were committed within the scope of the employment. This theory was also employed to Principal and Agent relationship. This^washow the above principle was applied to Common law and Civil law cases. 16. Now, coming to the case on hand, in the instant case the allegations are that the accused have committed the^{offenceonbehalfofthe} firm i.e.. M/s. P. Neelakantam and Sons. As per the above rulings, a firm though a Juristic person, is liable for the offence along with its partners. However, in the instant case the firm has not been arrayed as an accused. The impact of such non inclusion of the firm is to^{belookedinto...’’}

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In Himanshu v. B.Shivamurthy and another^, the Hon’ble Apex Court

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at paragraph No.13 held as follows:

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“In the absence of the company being arraigned as an accused, a complaint against the appellant was therefore not^{maintainable.} The

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^ 2020:APHC:29326

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= (2019) 3 see 797

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Contd...

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VS,J Crl.PNo.3364 of 2019

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appellant had signed the cheque as a Director of the^{companyandfor} and on Its behalf Moreover, in the absence of a notice^{of demandbeing} served on the company and without compliance with the^proviso to Section 138, the High Court was in error in holding^{thatthecompany} could now be arraigned as an accused. ”

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As cited supra, in the considered view of this Court,^{non-joinderofthe} necessary parties i.e., the father of the petitioner^{herein,whoinfactissuedthe} cheques to the defacfo-complainant, itself is a fatal to the case of the complainant and thus the complaint itself is not maintainable^{intheeyeoflaw} and in view of the same, continuity of the criminal proceedings as against the petitioner herein is nothing but abuse of process of law. Hence, the proceedings initiated against the petitioner are liable^tobequashed.

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Accordingly, the Criminal Petition is allowed and the^proceedings in C.C No.220 of 2018 on the file of the Special Magistrate^{CumVIAdditional} Junior Civil Judge, Tirupati are hereby quashed against^{thepetitioner/accused} herein.

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As a sequel, miscellaneous petitions, if any, pending in this criminal petition shall stand closed.

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Sd/-B.PRASADA RAO ASSISTANT REGISTRAR

//TRUE COPY//

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