Allowed

Kumram Srinivas Chari v. The State of Telangana and Another

Telangana HC7 Aug 2023CRLP/4909/2022

Case brief

AI extract

What is this about?

The High Court quashed maintenance proceedings under Section 138 NI Act where the second respondent issued a cheque three years after receiving a hand loan. The court held that the debt was time-barred under the Limitation Act, rendering it legally unenforceable at the time the cheque was issued, thus vitiating the criminal liability.

What did the court decide?

The Criminal Petition was allowed, quashing the proceedings against the petitioner in S.T.C. No. 1959 of 2021.

Kumram Srinivas Chari Vs The State of Telangana and Another — Cheque Dishonour | Telangana HC (2023)

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I32s4l

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IN TH€ HIGH^{COURT FOR THE STATE OF TELANGANA} AT HYDERABAD

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MONDAY, THE SEVENTH^DAYOFAUGUST TWO THOUSAND^{AND TWENryTHREE}

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PRESENT

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THE HON'BLE SMT. JUSTICE^{G. ANUPAMA CHAKRAVARTHY}

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CRIMINAL PETITIO^{N No:4909of 2022}

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Between:

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Kumram Srinivas Chari, S/o.^{Late NarashimaChary, Age- 55 Years, Occ'} Pharmacist, Rl/o. H. No. 5-11-564,^{Priyadarshini Nagar, Nirmal,AdilabadDistrict-} 504106.

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...Petitioner/Petitioner

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AND

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The State of Telangana , Represented^{by PublicProsecutor, High Courtat} Hyderabad.

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Srikanth Nalluri, S/o. Rajender^Nalluri, Age.^{34 Years,Occ. Business,R:/o.H.} No. 8-2-603/2317, Preethi Nekethan,^{Flat No. F-1, Road No.'10,Baniara Hills,} Hyderabad.

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...Respondents/Respondents

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Petition under Section 482 of Cr.P.C^praying that^{in the circumstances} stated in the Memorandum of Grounds of Criminal^{Petition,the High Court may} be pleased to quash the complaint in S.T.C. No. 1959 ot²⁰²¹ ,^{on the file of} Honourable Xll Metropolitan Magistrate at Nampalfy,^Hyderabad.

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t.A. NO: F 2022

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Petition under Section 482 of Cr.P.C^praying that in the circumstances stated in the Memorandum of Grounds of Criminal Petition,^{the High Courtmay} be pleased to dispense with filing of the certified copy of complaint^{in S.T.C. No.} 1959 of 2021, on the file of Honourable Xll Metropolitan Magistrate at^Nampally Hyderabad.

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l.A. NO: 2OF 2022

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Petition under Seclion 482 of Cr.P.C praying that in the circumstances stated in the Memorandum of Grounds of Criminal Pelition, the High Court may be pleased to stay of all further proceedings including appearance of the petitioner/Accused in S.T.C. No. 1959 of 2021 , on the file of Honourable Xll Metropolitan Magistrate at Nampally, Hyderabad.

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This Petition coming on for hearing, upon^{perusingthe Memorandumof} Grounds of^{Criminal Petitionand upon hearingthe arguments of Sri K.} VENUMADHAV,^{Advocatefor the Petitionerand the Sri S. GANESH, Assistant} Public Prosecutor on^{behalf of the Respondent No.1 and of Sri SUNIL} DESHPANDE, Advocate^{for the Respondent No.2}

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The Court made the^{following: ORDER}

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HON'BLB SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY

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CRIMINAL PETITION No.4909 of 2022

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ORDER:

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This criurinal petition is filed under Section 482 of Cr.P.C. ln by the petitioner/accused seeking to quash the complaint S.T.C.No.l959 of 2021 on the file of XII Metropolitan Magistrate at Nampatly, Hyderabad.

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Heard learned counsel for the petitioner and Sri S.Ganesh, leamed Assistant Public Prosecutor for respondent No.l - State. Perused the record.

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The brief fhcts of the case arc that respondent No.2 herein has given a hand loan ol-Rs. 10,00,000/- to the petitioner/accused herein on 29.07.201'7, upon which the petitioner has promised to repay the said amount with simple interest of @ 2%. It is stated that even after a lapse of one year the petitioner/accused did not repay the said amount. On the persistent rcquests for repayment of the loan amount, the petitioner has issued a cheque dated 28.12.2020 in fhvour of the 2"'r responclent for a sum of Rs. 10,00,000/- and whe n the said cheque was presented before the Bank on 02.01.2021, it was returnecl with an endorsement of

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"lnsufficient Funds" and on instructions of the petitioner, 2"d respondent had furlher lepresented the said cheque on 15.01.2021 But, the said cheque was again returned with an endorsement "paynrent stopped". Therefore, On 20.01.2021, rcspondent .No.2 issued legal notice to the petitioner. Even though the same was received, the petitioner did not repay the said amount, as such, 2"d respondent has filed the complaint under Sections 138 and l4l of Negotiable Instruments Act, 1881.

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It is the contention of the learned counsel lbr ttre petitioner that petitioner lras not at all issued the said cheque to the 2nd respondent at any point of time and that the respondent No.2 out of acquaintance might have taken away the said cheque and by folging the signatures of the petitioner with a date 28.12.2020 and writing a surn of Rs. 10,00,000/- on it might have prr:sented the said cheque lo his account. Even by naked eye, the signatures on the chequc are cornpared to signatures on the vakalat. it can be found that thc said signatures are forged. It is the further contentior.r of thc lcamcd courrscl fbr the petitionel that as per the (:ontents of the complaint, thc alleged amount was paid to the peritioner on 29.07.2011 and the datc olcheque is issued on28.12.2020, rvhich

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was issued after a period of 3 years 3 months. Hence, it is a^time barred debt and 1lrere cannot be any recovery for a time barred debt. Therefiore, prayed to quash the petition.

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Inspite of fiting vakalat on behalf of the 2nd respondent, none has appeared fbr him and therefore, the matter was adjourned only for hearing the 2'd respondent on 02.09.2022 and 28.06.2023. Even torJay, when the rnatter is catled, there is no representation on behalf of the 2'd respondent. Therefore, the arguments of the 2n'r respondent are treated as "nil".

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On perusal. of the contents of the complaint, it is evident that the petitioner has taken hand loan of Rs. 10,00,000/- from respondent No.2 on 29.07.2017 and that the petitioner has issued cheque <lated 28.12.2020 for an amount of Rs.10.00,000i-. The contents of the complaint also reveals that the petitioner promised to repay the said loan with interest @ 2%o on the loan amount of Rs. 10.00,000/-. Il'at all the petitioner has issued the cheque, he

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ought to havc issued the same for Rs.10,00,000/-, af,ter adding interest to the said amount of Rs. 10,00,000/- for a period ol-3 years --i months.

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7 . Admittedly, the date of advancement of loan was 29.07 .2017 and the alleged cheque which was issued on 28.12..2020.If there is any legally enforceable debt, in discharge of tl.re legall y enforceable debt, a cheque has been issued within the prcscribed timc and therc cannot be any issuance of cheque for a time barred cheque.

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Learned counsel for the petitioner relied on the judgment of this Court in Padala Veera Venkata Saltanarayana Reddy v. Stote of Antlhra Pradesh and otherst wherein their Lor.dships have held that there should be a legally enforceable debt by the date of issuance of cheque.

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g. Further, the learned counsel for the petitioner also relicd on the^judgment of this Court in Rakesh Agantul v. K.Narusinha Rao2 untl A. Yesubabu v. D. Appata Swunty3, wherein it is held as

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under:

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" The counsel for the petitioner rclics tttt ttlo judgntents of this Court in Rakesh Agartvtl v. K. Narasinha Rao, MANU/AP/2852/2014 : 2016 (l) ALT (CrL) 136 (AP) and A. Ycsuhabu v. D. .4p1tula Swanty, MANU/AP/1076/2003 : 2003 (2) Al-D (Cr,r.) 707 (AP). ht Rakesh Agarx'al's casc( supro), tltc Court held lltal once tlte prontissorl' notc debt is barred by tinte, it caunot be brought v'ilhitt Sectiott )'5 of thc Contract Acl trcating thc <,hcr1uc as tt acknotvledgntent of tlrc timc burred dcht. Itt ..1.

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'zoro lr'1^aLo 1c,1.)^496(A?) ':o^{to (t) ALt (Crl.) 136(AI,)} r zool 12y nLo 1crt.) 707 (Ap)

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Yesubabu's case^(supra), this Courl heltl^{that if any} cheque is issued by the^{accusedafler expir!6f tlrs} linritation for releasing^{the debt, it} cannot^{be said thnt} it was issued for a legally enforceable debt^{In the said} case, the cheque was issued on 25.8.1994^nearly7 years after the taking of lhe amount froru^lhe complaiiant. The Court consilered^{tlrc etrlierruling} of this Court in Giridhar Lol Rnhi^{v. P.T-V.} Ranrcnujachar and another, 1997^{(2) Crinrcs 658,} wherein lhe loan was advauced in the^{year1985 and} the cheque was issued in the^year 1990. n^{was hcld} tlterein tlrat by the line the cheque^{was issucd,the} debl appears to have been barred by^lintitation because.there no ackttowledgntenl^{is alleged lo htve} been obtained by the appellanl fro,,.^Rl-accused, before expiry ol lhree^years fro t the^{date of lonn. It} was held thal the debt was not legally^enforceable the line of issuonce of cheque and, therel'ore,^vide explanalion lo Section¹³⁸ of N.I. Act,^{wlticltrcads us} under:

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"Explanation-Until^{the debt is legally rccovcrahle} the drawer of the cheque cannot^be fastened^with liability under Section 138 of N.I.A. Act" thc^cheque cannot be said to have been issued lowards^discharge of legally enforceable .lebL"

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A Division Bench iudgment of tlis Courl^{x:tts olso} relied upon by the High Court, which is renderedⁱⁿ Mr. Amit Desai and another^v. Shine Enlerpriscs^an another, MANa/AP/0776/2000: 2000^(l) ALD^(Crl.) 5E7 (AP) :2000 Cri. LJ 2386,^wherein it^n,rl.s specifically laid down lhal the debt or tther liubility ,tteans a legally enforceable debl or otlrer liahilitl, 1n4 enforceinent of legal liability has to be in the nature^oJ civil suit because tlte debt or other liubilin' cannot^he recowred by Jiling a criminol ctse und^n'lrcrc lheru^is a bar of Jilittg a suit by ,tttrcgistered Jiru, thc^hur equally applies lo crininal cose os hid lo*'nⁱⁿ Explanation (2) of Section l-18 ol Negotiuhle Irrslruntents Act.

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In these cases, os already obscrvetl,^the limitation for enforcing tlrc promissory nolcs^e-rpired nuch prior lo tlrc issusnce of the cheques in^qutslion. Hence, in view ol the above, this Court opines ri tlrc inpugned complaints cannol he sustaincd otrd thar

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these are fit cases for quashing of the proceetlings aga i n st the peti tio n e rs.',

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The above said judgment squarely applies to the facts and

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circumstances of the case.

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As per the above said judgrnent, the debt appears to have been barred by limitation, as the cheque has not been rssued within a period of three years. Therefore, this Court is of the considered view that there is no legatly entbrceable debt, for rvhich the cheque has been issued.

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In view of the above, Criminal petition is allowed quashing the proceedings against the pctitioncr/u..ur"j in S.T.C.No.l959 of 2021 on the file of XII Metropolitan Magistrate at Narnpally, Hyderabad.

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Pending miscellaneous applications, if any, shall stand

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closed.

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Sd/- MOHD. SANAULLAH ANSARI ASSISTANT REGISTRAR //TRUE COPY// '"ab/

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SECTION OFFICER

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To,

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