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Judgment
Criminal Petition No.3799 of 2018
This Criminal Petition is filed by the petitioners/A3 & A4 to quash the proceedings against them in CC.No.140 of 2017 on the file of VII Special Magistrate, Erramanzil, Hyderabad. The offence alleged against the petitioners are under Section 138 r/w.sec.142 of the Negotiable Instruments Act, 1981.
Criminal Petition No.3861 of 2018
This Criminal Petition is filed by the petitioners/A3 & A4 to quash the proceedings against them in CC.No.150 of 2017 on the file of VII Special Magistrate, Erramanzil, Hyderabad. The offence alleged against the petitioners are under Section 138 r/w.sec.142 of the Negotiable Instruments Act, 1981.
Since the question of fact and law are same, both the petitions are disposed off by this common order.
Heard learned counsel for the petitioners and learned Additional Public Prosecutor for the 1st respondent-State.
The 2nd respondent filed complaint for the offence under Section 138 of the Negotiable Instruments Act against these petitioners. Accused No.3/petitioner No.1 is the Proprietary concern and Accused No.4/petitioner No.2 is the Proprietor.
The case of the defacto complainant is that he had dealings with the accused A1 to A4 and on different dates he supplied material to the accused. Initially, the 2nd petitioner/A4 issued cheque towards payments, however, the said cheque was returned for the reason of insufficient funds. Thereafter, complaint was filed. However, issues were settled in between the parties. The total outstanding of Rs.61,50,000/- was liable to be paid. Accordingly, two cheques were issued. The cheque issued for Rs.30 lakhs is the subject matter of Crl.P.No.3861 of 2017 and another cheque issued for Rs.31,50,000/- is the subject matter of Crl.P.No.3799 of 2018. The said cheques when presented for clearance were returned unpaid for the reason of insufficient funds.
In both the cases for the reason of not honouring the cheques, notice was issued to all the accused. Since the amount covered by cheques was not paid, complaints were filed separately.
Learned counsel appearing for the petitioners would submit that the cheques were issued and signed by Accused No.2. The petitioners herein have nothing to do with the issuance of cheques. Since the cheques were issued by Accused No.2, the question of prosecuting these petitioners does not arise.
He relied on the Judgment of Honourable Supreme Court in Aparna A.shah v. sheth Developers Private Limited and another (2013) 8 Supreme Court Cases 71 wherein the Honourable Supreme Court held that only the drawer of the cheque can be prosecuted for the offence under Section 138 of the Negotiable Instruments Act, except in the case of culpability of other persons who are made vicariously liable under Section 141 of the Negotiable Instruments Act.
On the other hand it was argued by the learned counsel appearing for the 2nd respondent that there are clear averments in the complaint stating about the background, acquaintance and business transactions in between the petitioners and the complainant. In fact it is specifically mentioned in the complaint that the 2nd petitioner had handed over both the chqeues in question. When there is a specific allegation, the proceedings have to continue and it is for the trial Court to decide the complicity or otherwise of the petitioners herein.
Both the cheques in question were admittedly signed by Accused No.2-P.Sridhar. Even accepting that the said cheques were handed over by 2nd petitioner/A4, the question of prosecuting the petitioners does not arise. It is only the drawer of the cheque who can be prosecuted under Section 138 of the Negotiable Instruments Act. It is not the case that these petitioners fall within section 141 of the Negotiable Instruments Act and are vicariously liable.
For the said reason of the 2nd petitioner/A4 not being the drawer of the subject cheques, the question of prosecuting the petitioners herein does not arise.
Accordingly, both the Criminal Petitions are allowed and the proceedings against the petitioners /A3 & A4 in CC.No.140 of 2017 and CC.No.150 of 2017 on the file of VII Special Magistrate, Erramanzil, Hyderabad, are hereby quashed.
Miscellaneous applications, if any, pending shall stand dismissed.