Bonthagorla Naga Lakshmi vs Yarasani Lingaiah and Another

P.S. Narayana, J.—Heard the learned Counsel.

It is no doubt true, in the facts and circumstances instead of filing criminal revision case, it would have been appropriate to file criminal petition u/s 482 of Cr.P.C. However, inasmuch as the High Court of Judicature is exercising powers both u/s 482, Cr.P.C, and u/s 397 read with Section 401 of Cr.P.C, this Court is inclined to decide the matter on merits.

The only ground raised by Mr. Md. Saleem, learned Counsel representing the petitioner is that the petitioner is the wife of A1, she never signed the cheque nor at any point of time she had given consent. Despite the same, C.C. No 315 of 2004 on the file of the Judicial Magistrate of First Class for Excise, Guntur is being proceeded with not only against the husband, but also as against the wife. This is illegal and the complaint is liable to be quashed as against the wife.

The learned Additional Public Prosecutor, however would maintain that the Crl.M.P. No. 839 of 2004 in C.C. No. 315 of 2004 filed praying for discharge itself is not maintainable and hence no further orders need be passed at this stage in this case.

Heard both the learned Counsel.

It is no doubt true that the wife, Bonthagorla Naga Lakshmi-A2 in C.C. No. 315 of 2004 filed Cri.M.P. No. 839 of 2004, praying for discharge of the offence u/s 138 of the Negotiable Instruments Act, 1881, hereinafter in short referred to as ''the Act'' for the purpose of convenience. It is stated that on 28.10.2002 both the wife and husband borrowed Rs. 30,000/- for the purpose of business and executed a promissory note. It is further stated that A.1 had given a cheque for Rs. 30,000/- on 2.3.2003 with the consent of A.2 and the cheque was dishonoured on the ground that the account was closed and hence the statutory notice was issued and the complaint was filed.

It is not in controversy that the wife never issued the cheque at all. The only allegation is that the wife is also a consenting party. This Court is of the considered opinion that the criminal liability cannot be fastened on A2 for the offence punishable u/s 138 of the Act. It is needless to say that the ingredients u/s 138 of the Act are not satisfied so far as the wife is concerned. In the peculiar circumstances of the case, this Court is well satisfied that C.C. No. 315 of 2004, on the file of the Judicial Magistrate of First Class for Excise, Guntur is liable to be quashed and is quashed.

The criminal petition though the same is filed under the form of criminal revision case, is hereby allowed.