Dismissed

Smt.S.Vanithaamani v. The State of Andhra Pradesh

Telangana HC24 Jan 2012CRLP/926/2012

Case brief

AI extract

What is this about?

The Court dismissed a criminal petition filed under Section 482 Cr.P.C. seeking to quash proceedings under Section 138 of the Negotiable Instruments Act. The petition held that factual disputes require trial and cannot be resolved in a quashing petition once a prima facie case is made. (24.01.2012)

What did the court decide?

The criminal petition under Section 482 Cr.P.C. seeking to quash proceedings under Section 138 of the Act was dismissed.

Smt.S.Vanithaamani Vs The State of Andhra Pradesh — Cheque Dishonour | Telangana HC (2012)

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THE HON’BLE SRI JUSTICE K.C.BHANU

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CRIMINAL PETITION NO.926 OF 2012

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ORDER:

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This Criminal Petition is filed by the petitioner/A-3 under Section 482 Cr.P.C. seeking to quash the proceedings in C.C.No.177 of 2006 on the file of the I Additional First Class Magistrate, Proddatur, Kadapa District.

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2. It is stated in the petition that respondent No.2 filed the complaint against the petitioner and two others stating that respondent No.2 has done cotton business with A-1 and A-2 during the years 2004 and 2005 and the accused fell due an amount of Rs.16,92,696/- for which A-2 issued cheque for an amount of Rs.4,12,734/-, but the same was dishonoured when presented for collection; that the petitioner was a Director of A-1 company and as per the advice and instructions of the petitioner only, A-2 issued the cheque and as such, the petitioner is liable to be prosecuted under the Negotiable Instruments Act, 1881 (for short, ‘the Act’).

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3. Learned counsel for the petitioner/A-3 contended that before filing the complaint, the de facto complainant received the amount under the cheque; that the petitioner was not a signatory to the cheque; that petitioner retired from the firm with effect from 15.07.2004 and therefore, prays to quash the proceedings in the above case.

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4. The essential ingredients under Section 138 of the Act are there must be a debt or other liability legally enforceable (a) that cheque must be given by the debtor in favour of the creditor in discharge of the said debt or liability in whole or in part (b) that the cheque should be returned by the bank for insufficiency of funds to the credit of the debtor to honour the cheque.

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5. The allegations of the complaint would go to show that A-2 issued a cheque on behalf of A-1 company to discharge the legally enforceable debt. When the cheque was presented, it was returned with an endorsement as “insufficient funds”. After giving a statutory legal notice, the complaint was filed. Whether the petitioner was a Director of A-1 company as on the date of issuance of the cheque or not; whether she is in-charge of and responsible to the day-to-day affairs of A-1 company or not; and whether A-2 paid the entire amount covered under the cheque or not, are the matters required to be adjudicated by the trial Court after adducing necessary evidence. These disputed questions of fact cannot be resolved by exercising powers under Section 482 Cr.P.C. Hence, the question of quashing the proceedings in the above case does not arise when offence under Section 138 of the Act is prima facie made out and the Criminal Petition is liable to be dismissed.

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6. Accordingly, the Criminal Petition is dismissed.

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______________________ JUSTICE K.C.BHANU

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Date: 24.01.2012 AMD

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THE HON’BLE SRI JUSTICE K.C.BHANU

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CRIMINAL PETITION NO.926 OF 2012

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DATE: 24.01.2012

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AMD

Smt.S.Vanithaamani v. The State of Andhra Pradesh

Case brief

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Smt.S.Vanithaamani v. The State of Andhra Pradesh

Case brief

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What did the court decide?

What the court decided

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