Dismissed

Mohammed Mushtaq Malik v. The State of Telangana and Another

Telangana HC13 Jul 2022CRLP/2869/2021

Case brief

AI extract

What is this about?

The High Court of Telangana dismissed a criminal petition filed under Section 482 CrPC seeking to quash a cheque bounce case. The court held that the petitioner's factual pleas regarding non-service of notice and the nature of the cheque required proof through evidence which is not available at the initial stage; thus, no grounds merited interference in the pending case.

What did the court decide?

The Criminal Petition under Section 482 CrPC seeking quashing of the complaint in C.C. No.3 of 2020 was dismissed.

Mohammed Mushtaq Malik Vs The State of Telangana and… — Cheque Dishonour | Telangana HC (2022)

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IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

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WEDNESDAY ,THE THIRTEENTH DAY OF JULY TWO THOUSAND AND TWENTY TWO

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PRESENT

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THE HON'BLE DT. JUSTICE CHILLAKUR SUMALATHA

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CRIMINAL PETITION NO: 2869 OF 2021

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Between:

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Mohammed MushtaqMalik, S/o.Late Mohd. Mastan, Aged about 50^years, Occ. Business, R:/o. H.N o.'1 6-9-406/4/59, Old Malakpet, Hyderabad.

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...PETITIONERYACCUSEO

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AND

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The State of Telangana, Rep. by its Public Prosecutor High^{Court at} Hyderabad.

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Mohammed Raheem Ghouri, S/o. Late Mohd.^{lmam Ghouri, Aged about 59} years, Occ. business, R/o. H. No. 17-1-181 lM I 115, Darab Jung Colony, Santosh Nagar, Hyderabad.

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...RESPONDENTS

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Petition under Section 482 of Cr.P.C^praying that in the circumstances stated in the Mgmorandum of Grounds of Criminal^{Petition,the High Cou(may} be pleased to call for record and Quash^{C.C. No. 3 of 2020on the file of Hon'ble} XIV Special Metropolitan Magistrate at M.J.^{Market, Nampally in the interestof} justice.

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l.A. NO: 1OF 2021

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Petition under Section 482 of Cr.P.C^{prayingthat in the circumstances} stated in the Memorandum of Grounds of Criminal^{Petition, the High Court may} be pleased to stay all further^{proceedings includingarrest in C.C. No. 3 of 2020} on the file of the Hon'ble XIV Special^{Metropolitan Magistrate at lI.J. Market'} Nampally, Hyderabad.

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This Petition coming on for hearing, upon perusing the Memorandum of Grounds of Criminal Petition and upon hearing the arguments of Sri Mir Masood Khan, Advocate for the Petitioner and the Assistant Public Prosecutor on behalf of the Respondent No.1 and none appeared for the Respondent No.2.

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The Court made the following: ORDER

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HON,BLE DT. JUSTICE CHILLAKUR SUMALATHA

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CRIMINAL PETITION No.2869 of 2O2l

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ORDER:

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Seeking to quash the proceedings that are pending against the petitioner who is arrayed as accused in C.C.No.3 of 2O2O that is pending on the file of the Court of XIV Special Metropolitan Magistrate, Nampally, Hyderabad, the petitioner moved the oresent Crirrrinal Petition.

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Heard the submission of learned counsel for the petitioner. Respondent No.2 on whose complaint the proceedings are initiated., failed to represent.

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On the allegation that the petitioner committed offence punishable under Section 138 of the Negotiabie Instruments Act, 1861, respondent No.2 lodged a complaint. Cognizance was taken and the case was numbered as CC.No.3 of 2O2O. The said Calendar Case stood pending on the file of the Court ol XIV Special Metropolitan Magistrate, Nampally, Hyderabad.

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Dr.CSL, J ('rlPNo.2869 of 2O21

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4 Learned counsel for the petitioner contends that no notice as contemplated under Section 13g(b) of the Negotiable Instruments Act, 1gg1 was served upon the petitioner/accused by respondent No.2/complainant arrd further, respondent No.2/comprainant is not a horder in due course as contemplated under Section 9 of the Negotiable Instruments Act, 1gg1. Learned counsel further states that the alleged cheques, basing on which complaint is filed, have to be presented within six months from the date on which they were drawn, but they were not presented within that time and further, as per the agreement, basing on which respondent No.2,rcomplainant rests his case, the alleged cheques were haaded over as security. [,earned counsel also states that respondent No.2/complainalt filed postal receipts, but those postal recerpts neither contain the name of the petitioner/accused in full nor his residential particulars in exact terms and thus, the mandatory requirement of giving notice in writing to the drawer of the cheque as contemplated under Section 138(b) the Negotiable Instruments Act, 1881 is not

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Dr.CSL, J CrlPNo.2869 of 2O21

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complied with and in these circumstances, the complaint itself is not sustainable.

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Though respondent No.2/complainant failed to submit his contentions before this Court either in person or through his counsel, the counter filed by him is on record. In the said counter, respondent No.2,/complainant contended that when he requested the petitioner/accused to repay the amount of Rs.20 lakhs, on LO.Z.2OI9 the petitioner/ accused filled up the date in the said four cheques and hand over them to present the same for encashment and when they were presented, they were dishonoured on the ground "funds insuflicient". It is also stated that he issued legal notice and the said legal notice was received by the petitioner/accused and the track report of the postal department which is fiIed along with the complaint establishes the said fact. It is also mentioned that onlV with a malafide intention to prolong the proceedings in^'CC.tto.g of 2O2O, the present Crimina_l Petition is filed and as such) the*same is liable to be dismissed.

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",**".rru?';fihl 6. In support of his stand ttrat where the notice has not been served properly, the complaint filed under Section 138 of the Negotiable Instruments Act, 1gg1 is not maintainable and therefore, the same is lable to be quashed, tht_. learned counsel for the petitioner relied upon the decision of the Hon,ble Apex court in the case between Shakti Trauel and Tours Vs. State of Bihar and. otherst. Further, contending that non_service of notice is fatal to the case of the complainant, the rearned counsel also relied upon the decision of the Hon,ble Apex Court in the case between V.RaJa Kumart Vs. p.Subbarama Naidu and other#. on the same proposition, the learned counsel also relied upon the decision of the High Court of Kerala in the case between Anil Raj Vs. Integrated tr inance Co. Lt& and the decision of the punjab arrd Haryana High Court in the case between Om prcrkcrsh Vs. Gurcharan

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Singh+.

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Dr.CSL, J CrlPNo.2869 of 2O21

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When the version of the petitioner/accused is that notice as contemplated under Section 138(b) of the Negotiable Instruments Act, 1881 was not issued, the contention of respondent No.2/complainalt is that he issued notice and the sarne was received by the petitioner/accused. Respondent No.2-complainant also states in his counter that sufficient proof to that effect is frled before the Court. The second plea taken by the petitioner is that the alleged cheques were issued by him only as security and therefore, it cannot be held that the said cheques were handed over by the petitioner/accused to respondent No.2/complainant towards discharge of legally enforceable debt. How far the pleas taken by the petitioner/ accused are valid and genuine cannot be discussed and decided by this Court without there being availability of sufficient material that too in the form of evidence. The power to quash the proceedings is limited and restricted. Only when the Court firmly and definitely comes to a conclusion that its interference is required^to prevent the abuse of process of law or to meet the ends of justice, such a power granted under Section 482 Cr\P.C.

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Dr.CSL, J CrtPNo.2869 of 2021

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can be exercised. Repeatedly, tJle Hon,ble Apex Court held that the power granted under Section 4g2 Cr.p.C.has to be exercised sparingly, that too, when convincing grounds are projected.

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In the case on hand, the grounds urged and the pleas taken by the petitioner/accused have to be verified through the evidence produced by both parties to the said Calendar Case. As of now, this Court cannot quash the proceedings by holding that the complaint lodged is unsustainable in the eye of law. Therefore, this Court is of the view that there are no merits waranting interference of this Court to quash the proceedings.

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Resultantly, the Criminal petition is dismissed.

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As a sequel, pending miscellaneous applications if any, shall stand closed.

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HIGH COURT

DATED: 1310712022

ORDER

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CRL.P.No.2869 of 2021

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DISMISSING THE CRIMINAL PETITION