Dismissed

Thota Khadar Valindra Babu Rao v. The State of Andhra Pradesh

Telangana HC11 Nov 2014CRLP/11077/2009

Case brief

AI extract

What is this about?

This is an inherent powers petition under Section 482 Cr.P.C. seeking to quash proceedings for cheque dishonour. The court held that disputed questions of fact regarding the enforceability of a chit transaction must be tried and cannot be adjudicated in a quashing petition. The petition is dismissed.

What did the court decide?

The Criminal Petition No.11077 of 2009 is dismissed, and attached miscellaneous petitions are closed.

Thota Khadar Valindra Babu Rao Vs The State of Andhra… — Cheque Dishonour | Telangana HC (2014)

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THE HON’BLE SRI JUSTICE T. SUNIL CHOWDARY CRIMINAL PETITION No.11077 of 2009

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ORDER:

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This Criminal Petition is filed under Section 482 of Cr.P.C., to quash the proceedings against the petitioner/ accused in C.C.No.619 of 2009 on the file of the III Additional Chief Metropolitan Magistrate, Vijayawada, Krishna District, for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881.

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2. The learned counsel for the petitioner/accused submitted that the allegations made in the complaint do not constitute the offence alleged.

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3. Learned Additional Public Prosecutor submitted that the allegations made in the complaint prima facie constitute the offence alleged.

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4. A perusal of the record reveals that the petitioner herein is the accused and the second respondent is the de facto complainant. As per the allegations made in the complaint, the petitioner herein issued a cheque bearing No.012439 dated 18.08.2008 for an amount of Rs.5,00,000/- drawn on Vijaya Bank Limited, Machilipatnam Branch in favour of the 2^nd respondent. The 2^nd respondent presented the cheque in State Bank of Hyderabad, Civil Courts Branch, Vijayawada for collection. The cheque was returned on 27.11.2008 with an endorsement ‘Account Closed’. The 2^nd respondent got issued a notice dated 27.11.2008 directing the petitioner to pay the amount within 15 days from the date of receipt of the notice. The accused got issued a reply notice dated 08.12.2008. Having no other alternative, the 2^nd respondent filed a complaint under Section 138 of the Negotiable Instruments Act, 1881.

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5. The learned Magistrate, after strictly adhering the procedure contemplated under the Negotiable Instruments Act, 1881, has taken the cognizance of the offence under Section 138 of the N.I.Act against the petitioner and issued process. The learned Magistrate has not committed any illegality or irregularity while taking the cognizance of offence.

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6. The contention of the learned counsel for the petitioner is that the cheque in question was issued in respect of the chit transaction. He further submitted that the alleged debt is not legally enforceable.

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7. I have carefully scanned the material available on record. The various

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questions raised by the learned counsel for the petitioner involve complexity of disputed questions of fact, which cannot be gone into while exercising the inherent jurisdiction under Section 482 of Cr.P.C. While deciding this type of petitions the Court has to take into consideration whether the allegations made in the charge sheet are prima facie sufficient to proceed further against the petitioner or not. The material placed before the Court is prima facie sufficient to proceed further against the petitioner.

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8. I n Madhu Limaye Vs. State of Maharashtra the Hon’ble Supreme Court

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held as under:

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“At the outset the following principles may be noticed in relation to the exercise of inherent power of the High Court, which have been followed ordinarily and generally, almost invariably, barring a few exceptions.

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1. That the power is not to be resorted to if there is a specific provision in the Code for the redress of the grievance of the aggrieved party;

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2. That it should be exercised very sparingly to prevent abuse of process of any Court or otherwise to secure the ends of justice;

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3. That it should not be exercised as against the express bar of law engrafted in any other provision of the Code.”

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9. In Padal Venkata Rama Reddy @ Ramu Vs. Kovvuri Satyanarayana

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Reddy and others, the Hon’ble Supreme Court held as under:

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13. It is well settled that the inherent powers under Section 482 can be exercised only when no other remedy is available to the litigant and not in a situation where a specific remedy is provided by the statute. It cannot be used if it is inconsistent with specific provisions provided under the Code (vide Kavita v. State {2000 Cri LJ 315 (Del)} and B.S. Joshi v. State of Haryana {(2003) 4 SCC 675}. If an effective alternative remedy is available, the High Court will not exercise its powers under this section, specially when the applicant may not have availed of that remedy.

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10. Having regard to the facts and circumstances of the case and also the principles enunciated in the cases cited supra, I am of the view that it is not a fit case to quash the proceedings at pre trial state.

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11. With the above direction, the Criminal Petition is dismissed. However, dismissal of this petition does not preclude the petitioner to urge all these aspects before the trial Court. Consequently, Miscellaneous Petitions, if any pending in this Criminal Petition, shall stand closed.

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T. SUNIL CHOWDARY, J

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11^th November, 2014

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siva

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THE HON’BLE SRI JUSTICE T. SUNIL CHOWDARY

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CRIMINAL PETITION No.11077 of 2009

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11^th November, 2014