Dismissed

M.D.Razak, v. The State of Andhra Pradesh

Telangana HC14 Feb 2012CRLP/1767/2012

Case brief

AI extract

What is this about?

The High Court dismissed a criminal petition seeking quashment of proceedings under Section 138 NI Act. The court held that whether the complainant knew about the account closure is a question of fact for the trial court. A prima facie case was made out as the cheque was returned unpaid due to nil balance, meeting the requirements of Section 138.

What did the court decide?

Criminal petition filed under Section 482 CrPC seeking quashment of proceedings under Section 138 NI Act was dismissed.

M.D.Razak, Vs The State of Andhra Pradesh — Cheque Dishonour | Telangana HC (2012)

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THE HON’BLE SRI JUSTICE K.C. BHANU CRIMINAL PETITION No. 1767 of 2012

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ORDER:

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This criminal petition is filed under Section 482 Cr.P.C., seeking to quash the proceedings in C.C.No.361 of 2011 on the file of Judicial Magistrate of the First Class, Godavarikhani, which was taken on file for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 (for short, the Act).

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Heard.

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Brief facts that are necessary for disposal of this petition are stated as follows:

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The petitioner/accused is friend of complainant and he borrowed an amount of Rs.90,000/- as hand loan from the complainant on 08.08.2010 for meeting his business needs and, on the same day, he issued a cheque and permitted the complainant to encash the cheque after one month. When the complainant presented the cheque for encashment on 16.11.2010, it was returned unpaid with an endorsement “account closed”. After issuing statutory legal notice, the complaint was filed.

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Learned counsel for the petitioner stated that the complainant was having knowledge about the closure of account and therefore, he ought not to have presented the cheque and hence, prays to quash the proceedings.

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Inherent powers of this Court under Section 482 Cr.P.C. can be invoked when there is abuse of process of

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Court or, to secure ends of justice or, to carry out orders passed under the Code. If the allegations leveled do not make out prima facie case, then only the question of quashing of proceedings arises.

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For establishing an offence under Section 138 of the Act, two requirements are to be satisfied. Firstly, where any cheque 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 for the discharge, in whole or in part, of any debt or other liability, and secondly, the cheque was 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.

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If the reason for dishonour of cheque is “closure of account”, it would be immaterial when the account was closed, because in either case the amount of money standing to the credit of “that account” would be ‘nil’ at the relevant time.

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The ground taken by the petitioner is that the complainant was having knowledge about the closure of the account, which is a question of fact, the truth or otherwise of the same has to be decided by the trial Court during the course of trial. When prima facie case is made out against the accused for the offence punishable under Section 138 of the Act, it is not a fit case to quash the proceedings.

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Accordingly, the criminal petition is dismissed.

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JUSTICE K.C. BHANU

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14^th February, 2012 KSM

M.D.Razak, v. The State of Andhra Pradesh

Case brief

What is this about?

What did the court decide?

M.D.Razak, v. The State of Andhra Pradesh

Case brief

What is this about?

What did the court decide?

What the court decided

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