Court allowed criminal petition under Section 482 Cr.P.C under the N.I. Act to quash proceedings for cheque dishonour as cheque was issued to discharge son's debt where mother was not jointly liable or a guarantor, amounting to abuse of process.
Criminal petition allowed and proceedings in C.C.No.355 of 2009 quashed against petitioner A-1.
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THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY
Criminal Petition No.9332 of 2010
(Dated: 18.9.2012)
Between: Missula Susheela W/o Rama Rao Vijayawada ….Petitioner A n d State of A.P., rep. by its Public Prosecutor, High Court of A.P., Hyderabad
…Respondents
THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY
Criminal Petition No.9332 of 2010
ORDER:
This Criminal Petition has been taken out under Section 482 Cr.P.C by A-1-Missula Susheela in C.C.No.355 of 2009 on the file of Additional Junior Civil Judge-cum-Judicial First Class Magistrate, Bapatla to quash the proceeding therein.
2. The 2nd respondent is the complainant, whereas the petitioner is A-1 in C.C.No.355 of 2009. A-2-Missula Venkata Rama Murthy is the son of A-1-Missula Susheela (petitioner herein). The 2nd respondentcomplainant filed a complaint in the Court of Junior Civil Judge-cumJudicial First Class Magistrate, Bapatla alleging inter alia that A-2Missula Venkata Rama Murthy borrowed an amount of Rs.5,00,000/on 28.7.2008 for the purpose of discharging his debts and for business purpose and executed a promissory note in her favour on the even date at Alluru village of PV Palem Mandal promising to repay the same with 24% compoundable interest per annum. On demand, the petitioner, who has been arrayed as A-1, issued a cheque for Rs.5,80,000/-, vide cheque No.374019 dated 3.6.2009. She presented the cheque for encashment. The said cheque came to be dishonoured on the ground of `insufficient funds’. Thereupon, she issued a notice to the petitioner calling upon her to pay the amount covered under the cheque in question. There being no payment, the petitioner herein, who has been arrayed as A-1 and her son (A-2) are liable for
punishment under Section 138 of the Negotiable Instruments Act. The learned Magistrate took the complaint on file as C.C.No.355 of 2009. Hence this petition by A-1 in C.C.No.355 of 2009 to quash the proceeding therein.
3. Heard learned counsel appearing for the petitioner/A-1 and learned counsel appearing for the 2nd respondent-complainant.
4. It is contended by the learned counsel appearing for the petitioner/A-1 that as on the date of issuance of cheque in favour of the 2nd respondent-complainant, there was no legally enforceable debt and therefore, prosecution of the petitioner/A-1 for the offence under Section 138 of N.I.Act amounts to abuse of process of Court.
5. Per contra; learned counsel appearing for the 2nd respondentcomplainant submits that A-2 who borrowed the amount from the 2nd respondent-complainant is no other than the son of the petitioner (A-1) and the cheque came to be issued by the petitioner (A-1) to discharge the liability of her son who has been arrayed as A-2 and therefore, it cannot be said that the cheque in question has not been issued towards legally enforceable debt.
6. Section 138 of the Negotiable Instruments Act reads as hereunder:-
“ 138. Dishonour of cheque for insufficiency, etc., of funds in the account.-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, 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, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may extend to one year, or with fine which may extend to twice the amount of the cheque, or with both:
Provided that nothing contained in this section shall apply unless---
(a) 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;
(b) xxxxxxxxxxxx
(c) xxxxxxxxx “
7. As on the date of issuance of cheque, there was no liability on the part of the petitioner/A-1 to pay the amount borrowed by her son, who has been arrayed as A-2. It is not the case of the 2nd respondent/complainant that the petitioner and her son jointly borrowed the amount from her. It is not even stated in the complaint that the petitioner/A-1 stood as guarantor for the loan availed by her son, who has been arrayed as A-2. Therefore, it cannot be said that the cheque has been issued by the petitioner/A-1 towards discharge of legally enforceable debt. In that view of the matter, I find that continuance of proceedings against the petitioner amounts to abuse of process of law.
8. Accordingly, the Criminal Petition is allowed quashing the proceedings in C.C.No.355 of 2009 on the file of the Additional Junior Civil Judge-cum-Judicial First Class Magistrate, Bapatla against the petitioner/A-1 herein.
_____________________ B.SESHASAYANA REDDY, J
Dt.18.09.2012 RAR
2 issues framed by the court
Whether quashing of criminal proceedings against the petitioner is appropriate when no legally enforceable debt exists as on the date of the cheque.
Whether issuance of a cheque to discharge a son's individual debt can constitute a legally enforceable debt imposed on the mother without her being a joint borrower or guarantor.
2 provisions across 2 enactments
Missula Susheela
State of A.P.
B. Seshasayana Reddy
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
