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Mohd Asif Haneef Vs Anudeep Malavathu — Cheque Dishonour | Telangana HC (2023)

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Telangana HC
2023
Mohd Asif Haneef Vs Anudeep MalavathuMohd Asif Haneef v. Anudeep Malavathu

Dismissed

Mohd Asif Haneef v. Anudeep Malavathu

Telangana HC19 Dec 2023CRLA/276/2019

Case brief

AI extract

What is this about?

In this criminal appeal under Section 378 CrPC, the High Court of Telangana affirmed the trial Court's acquittal of the accused in a cheque bounce case. The Court held that the appellant, having received partial payments, presented the cheques without endorsing the amounts cleared, thereby failing to establish the legally enforceable debt required under Section 138 NI Act.

What did the court decide?

Criminal Appeal dismissed; judgment of trial Court confirming acquittal is affirmed.

What the court decided

AI extract

Outcome

Criminal Appeal dismissed; judgment of trial Court confirming acquittal is affirmed.

Issue for consideration

Whether the judgment of the trial Court acquitting the accused in a Section 138 complaint needs interference by the High Court. +1 more

Detailed headnote1 paragraphs

In a complaint under Section 138 of the Negotiable Instruments Act for dishonour of cheques, the drawer can rebut the statutory presumption under Section 139 by producing evidence of payment. The Court upheld the trial Court's view that the complainant, having received partial payments and failing to endorse the same on the cheques or file a statement of account, approached the court without clean hands. The appeal was dismissed confirming the acquittal.

A compact analysis

This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.

A

IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

TUESDAY,THE NINETEENTH DAY OF DECEMBER TWO THOUSAND AND TWENTY THREE

PRESENT

ITHE HONOURABLE SMT JUSTICE K. SUJANA

CRIMIN APPEAL NO: 276 OF 2019

Crl.Appeal Under Section 378 (a) of Crl.p.C. aggrieved by the Judgment dated 17-08-2018 in C.C.No. 251 ot 2O1B on the file of the iourt of the Xll Special Magistrate, Hyderabad.

Between:

Qr.^{lVlohdAsif Haneef, S/o. Mohd. Haneef, Aged about36 years, R/o.Flat No.302,} A.S. Enclave, 1 1 -4-642, AC Guards, Hyderabad--S00004

...APPELLANT/ Complainant

AND

1 Anudeep Malavathu, Prop. Of Sri Surya Hospital, H.No.4-8-137l5/A, Near Pillar No.15'1, HydgiS@^a, Attapur, Rajendrana(;ar Also at Ftat No.201, Garg Residency, Plot No.52, Srilakshmi Nagar^-olony, Hyderguda, Aitapur] Rajendranagar

The State of Telangana, Rep., by its Public prosecutor, High Court of Telangana, Hyderabad

...RESPODENTS/ Accused

Counsel for the Appellant: SRl. NIZAMPUR CHANDRA SEKHAR

Counsel for the Respondent No.l : SRI M. V. SURESH

Counsel for the Respondent No. 2 : NONE APPEARED

The Court Delivered the following Judgment :

THE HON'BLE SMT JUSTICE K. SUJANA CRIMINAL APPEAL No.276 of 2OL9

JUDGMENT:

Aggrieved by the Judgment dated 17.08.2018 in C.C.No.251 of 2Ol8 passed by the learned XII Special Magistrate, Erramanzil, Hyderabad, the present Criminal Appeal is hled.

Heard Sri N.Chandra Sekhar, Iearned counsel appearing on behalf of the appellant as well as Sri M.V. Suresh, learned counsel appearing on behalf of respondent No. I.

The trial Court dismissed the complaint of the appellant filed under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the ActJ.

For thc sake of convenience, the parties are referred to as per their array in C.C.No.251 of 2018.

The facts of the case as per the complainant is that the complainant/ appellant is a well reputed Orthopedic Doctor rendered his services as an Orthopedic Doctor for the Hospital owned by respondent No.1/accused by name Sri Surya Hospital since February, 2015 to August, 2017 on a monthly remuneration of Rs.40,OO0/- along with added remuneration for performing procedures and surgeries. Respondent No.1/accused had confirmed the monthly and additional payments and also promised to make such arrangements for payments. He further contended that in discharge of said debt, the accused issued three cheques bearing No.257O23 dated 0 I .O8.2O 17 drawn on Eenadu Co-operative Urban Bank

2

SKS',. Ctl.A. No.276 of 2019

i

for an amount of Rs.2,00,OO0/-, cheque bearing No.OO0 192 dated 10.08.2017, drawn on ICICI Bank for an amount of Rs.2,84,4 19 l- and. another cheque bearing No.00O193 dated 1O.08.2017 drawn on ICICI Bank lor an amount of Rs.2,84,42O1-. Therefore, three cheques totaling to an amount of Rs.7,68,839 f - were given by respondent No.1/accused to the appellant/complainant in discharge of the legally enforceable debt.

The appellant/complainant further stated that when the above cheques are presented for payment on 07.O9.2Ol'7 with his Banker Andhra Bank, Saifabad Branch, Hyderabad, the said cheques were returned unpaid with an endorsement "Payment stopped by the drawer" on 11.09.2017. As such, he got issued statutory legal notice under Section 138 of N.l Act, on 25.09 .2017 , calling upon the accused to pay the cumulative cheques amount of Rs.7,68,839/- within 15 days and il was received by the accused and he gave a reply on 08.10.2017 with false allegations but admitted^the liability. As such, the accused is liable for the punishment under Section 138 of N.I.Act.

To prove his contention, the complainant himself examined as^P.W.1 and got marked Exs.Pl to Pl2 on his behalf and Exs.Dl to^D5 are^marked on behalf of the accused.

Basing on the above evidence and after hearing on both sides,^{the trial} Court dismissed the complaint.

The present appeal is filed by the appellant/ complainant stating that the trial Court observed the payments made in September, 2Ol7 uide

\

3

SKS,J Crt A.No.276 of 20¹⁹

Exs.D4 and Ds-Debit^{Voucherspertaining to the salaryfor the months of} January, 2Ol7 to^{August,2017.Therefore, it does not form part of the} arrears covered under^{subjectcheques. As there is no disputeregarding} this amount, it need^{not be mentionedbut the trial Courterredin observing} that the complainant failed to^{mention the payments made in September,} 2077 uide Exs.D4 and D5.^{Furthercontended that the accused obtained} Exs.DI to D3-Debit Vouchers^{for drawing Exs.P1to P3-chequestowards'old} due amount' and 'due amount'^{respectively shouldhave obtained receipt} from the complainant to the effect that^{the alleged amount covered by} Exs.D4 and D5 was in respect of^{particular cheque coveredby any of Exs.P1} to P3-cheques and that the accused^{should have stoppedpayment or got the} cheque referred to him with specific^{instructionthat the amountcoveredby} particular cheque stood paid.

It is further contended that the trial^{Court erroneously concludedthat} Exs.D4 and D5 are with respect to^{Exs.Pl to P3. The trial Court should} have appreciated that one of the cheques^{out of Exs.Pl to P3-chequeswould} definitely pertain to the balance amount^{to be paidby the accused and if he} discharged part of the debt under^{Exs.D4 and D5 debit vouchersand in} such case, the accused would be failed to discharge^{his burdento rebut the} legal presumptions and consequently, the trial Court^{shouldhave foundthe} accused guilty of the offence^punishable under^{Section 138 of N.l.Act.} Therefore, he prayed the Court to set aside the^{judgment of the trial Court} by convicting the accused.

4

sl(.'. C.L.A.No.276 of 2019

aI i i i

i !jt t I EI

1 1. [.earned counsel for the appellant 'a,ould submit that lhe trial Court erroneously acquitted the accused stating that Exs.Pl to P3 cheques are covered by Exs.D4 and D5 debit vouchers without considering the amount claimed by the appellant through Exs.Pl to P3 and the said debit vouchers are not with regard to any of Exs.P1 to P3-cheques. As such, the^judgment of the trial Court is not according to law and it is liable to be^{set asideby} convicting the accused.

On the other hand, learned counsel for the^{respondentwould submit} that in reply notice itself, the accused clearly^{mentionedaboutthe debit} vouchers and the accused already^paid the amount^{covered underExs.P1to} P3. Therefore, there is no illegatity in^{the judgment of the trial Court and} there are no merits in the appeal and^{prayed the Court to dismissthe} appeal.

i3. As seen from the record and on^{goingthrough the rival contentions,} now, the point for consideration^{is whetherthe judgment of the trial Court} needs any interference?

The complaint is^{hled by the appellant/complainant for dishonor of} cheques-Exs.Pl to P3.^{The complainant is an Orthopedic Surgeon,he} served in the Hospital run by^{the respondent No.1/accusedon monthly} remuneration of^Rs.4O,OOO I^- not^{includingsurgeries and procedures'} Whereas, the accused is due for an^{amountof Rs.7,68,839} /-^{and to} discharge the^{same,Exs.Pl to P3-cheques were issued.}

5

SKS,J Crl.A.No.276 of^2O19

1 5. The complainant^{himself examined as P'W' 1 and reiterated the} complaint averments in^{the chief affidavit.In his cross examination'he} admitted that he^{receivedExs.PI to P3 chequesfrom the accused in the} month of August, 2017.^{As per Ex-D1-debit voucher,he receivedEx'Pl-} cheque on 26.10.2016 and^{Exs.P2and P3 chequeson 03'012017 as per} Exs.D2 and D3-debit^{vouchers. He further admittedthat Ex.Pl-chequehe} filled up the date on the^{instructions of [he accused.He also admittedthat} he has not filed any statement^{of account or calculationof account to show} that he arrived at the total^{amount of Rs.7,68,839/- underExs Pl to P3He} further admitted that^{he receivedan amount of Rs.20,000/ - on 07 'O7 '2017,} Rs.2,OO,OO0/- on O2.O9.2017^{and another sum of Rs.1,15,O00/-fromthe} accused under Ex.D5 debit^{voucher. He also admittedthat he was not} mentioned in Ex.P7 legal^{notice to lhat effect that he receivedan amountof} Rs.3,35,OOO/- from the accused.

The contention of the learned^{counsel for the respondent is that the} cheques under Exs.Pl to^{P3 are already partly paid by the accused which} was not mentioned in his legal notice^{under Ex.P7.Therefore,the accused} is not liable for punishment under Section^{138 of N.I. Act and complaint} itself is not maintainable. He also relied on^{the Judgmentof the Hon'ble} Supreme Court in " Joseph Sartho^as' G.^{Goplnatho;n and anothert f in} support of his contention, wherein it^{has been held that 'as the attempt of} the appellant to encash the cheque^{without indorsing the amountalready} received is perilously bordering dishonesty.'

| 2008 online Ker 254

6

s/<s, Crl.A.No.276 of 2019

The counsel for the accused while drawing the attention of this Court in the case of Krishna Janard.hq.n Bhat us, Dattq.trdgq. G. Hegdez.

Wherein the Honble Apex Court referred to decision in the case of John K.John us. Tom Varghesd wherein the Hon'ble Apex Court held that "the High Court was entitled to take notice of the conduct of the parties. It has been found by the High Court as of fact that the complainalt did not approach the Court with clean hands. His conduct was not that of a prudent man. Why no instrument was executed although a huge sum of money was allegedly paid to the respondent was a relevant queslion which could be posed in the matter. It was open to the High Court to draw its own conclusion therein. Not only no document had been executed, even no interest had been charged. It would be absurd to form an opinion that despite knowing that the respondent even was not even in a position to discharge his burden to pay instailments in respect of the prized amount, an advance would be made to him and that too even after institution of three civil suits. The amount advanced evcn did not carry any interest. If in a situation of this nature, the H igh Court has arrived at a finding that the respondent has discharged his burden of proof cast on him under Section 139 of the Act, no exception thereto can be taken".

As seen from the record, the appellant has^{receivedarrearsof salary of} Rs.3,35,00O/- on 05.O9.2017 and he^{presented Exs.P1} to^{P3 chequeson} 07.O9.2017 to a tune of^{Rs.7,68,839/-.Therefore, he presented the cheques} more than the amount^{he is entitledas on the date of presentation andhe is}

'?(2008)^{4 SupremeCourt cases54} '^{(2007)r2 scc714}

1

S(S,J CrLA. No.276 of^{20 I 9}

only entitled tor^{Rs.3,35,0O0/as on the date of presentation of said} cheques on 07.O9.2O17'^{As such, the complainant failed to prove his case} as thee is no legally^{enforceableunder Exs.P1to P3 cheques'}

In the^{presentcase also this appetlant withoutendorsing the amount} received by him^{presented the chequesunder Exs'Plto P3 for the total} amount of Rs.7,68,839/-.^{Further, as observedby the Apex Court conduct} of the party is also^{important the appellant hereinnot approached the court} with clean hands.

The accused could^{rebut the presumption by virtue of Exs'Dlto D5-} debit vouchers and the^{appellant has not been able to prove the case, as} such, the trial Court dismissed^{the complaintby acquittingthe accused'} Therefore, there are no infirmities in^{the judgmentof the trial Court and} there are no merits in the appeal^{and the appeal is liable to be dismissed'}

Accordingly, the Criminal Appeal^{isdismissedconfirmingthe} judgment dated 17.08.2018 in C.C.No.25l of 2O 18^{passed by the learnedXII} Special Magistrate, Hyderabad.

As a sequel, miscellaneous^{petitions, pendingifany, shall stand} closed.

.t

SD/. K.SRINIVASA^RAO JOINT REGISTRAR .-.,/ d./

/ITRUE^COPY// SECTION^OFFICER

Toi] rn" xrr Special Magistrate Hvderabad' 2. Two^{CCs to PublicP'"""t;i;i' iif,;C:ourt for the Stateof Telangana at}

kut

, B'.l%t?i^{.Rr. NTZAMPURcHANDRAgEIlltRAdvocate[oPUCl} ;. 5.#;c^{i. sni.r',r n suRESHAdvocate[oPUC]}

Two^{CD Copies}

-

I ! I t i

I t2

HIGH COURT

DATED:1911212023

JUDGMENT

CRL.APPEAL No.276 of 2019

9TATE q A
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DISMISSING THE CRL.APPEAL

@ ,)A

Issues for consideration

2 issues framed by the court

AI extract

1.
Whether the judgment of the trial Court acquitting the accused in a Section 138 complaint needs interference by the High Court.
2.
Whether the appellant approached the court with clean hands by presenting cheques for a higher amount than the accrued debt without endorsing payments received.

Cases cited

Colour shows how this judgement treated each authority

AI extract

Joseph Sarthoji vs G. GopinathReferred¶16
Krishna Janardhan Bhat vs Dattatray G. HegdeReferred¶17
John K. John vs Tom VargheseReferred¶17

Statutes considered

2 provisions across 2 enactments

AI extract

Criminal Procedure Code378(a)
The Negotiable Instruments Act, 1881138

Parties & counsel

AI extract

appellant
Mohd Asif Haneef
respondent
Anudeep Malavathu
respondent
The State of Telangana

Coram

AI extract

K. SUJANA

Case details

As recorded by the court registry

Court: Telangana HC
Decided on: 19 Dec 2023 · December
Registered: 2 Apr 2019
Case no.: CRLA/276/2019
CNR: HBHC010831022018
Topic: Cheque Dishonour
Bench: K. Sujana
Disposal: DISMISSED NO COSTS

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Cite this judgement

Mohd Asif Haneef v. Anudeep Malavathu, CRLA/276/2019 (TEL), decided on 19 December 2023.

The High Court for the State of Telangana publishes no neutral citation for this judgement — cite it by case number and date of decision.

Cases cited3

Joseph Sarthoji vs G. GopinathReferred¶16
Krishna Janardhan Bhat vs Dattatray G. HegdeReferred¶17
John K. John vs Tom VargheseReferred¶17

Open Authorities

Statutes2

Criminal Procedure Code378(a)
The Negotiable Instruments Act, 1881138

View all statutes

Bench / Coram

K. SUJANA

Parties & counsel