AI Structured Summary
Not yet generated for this judgment
Judgment
P.S. Narayana, J.—While admitting the matter on 14.12.2009, this Court ordered notice in Criminal M.P. No. 10219 of 2009 and directed that the matter be listed after eight weeks.
Notice had been served on the first respondent-complainant and Sri C. Praveen Kumar, the learned Counsel entered the appearance on behalf of the first respondent-complainant.
Heard Sri K. Subrahmanyam, the learned counsel representing the petitioner-accused, Sri C. Praveen Kumar, representing the first respondent-complainant and the learned Additional Public Prosecutor representing the second respondent-State.
This Criminal Petition is filed u/s 482 of the Code of Criminal Procedure (hereinafter in short referred to as "the Code" for the purpose of convenience) praying to quash all the proceedings in C.C. No. 19 of 2009 on the file of the Judicial First Class Magistrate, V. Madugula, Visakhapatnam District.
Sri K. Subrahmnayam, the learned Counsel representing the petitioner-accused would maintain that taking cognizance of an offence u/s 138 of the Negotiable Instruments Act, in the facts and circumstances of the present case, cannot be sustained. The learned Counsel pointed out that virtually, for the self-same relief, already two suits had been filed and the said suits are pending disposal. In the light of the same, the proceedings under challenge being abuse of process of law are liable to be quashed. The learned Counsel also strongly relied on the decisions of the Apex Court in Inder Mohan Goswami and Another Vs. State of Uttaranchal and Others,
The learned Additional Public Prosecutor representing the second respondent-State would maintain that as can be seen from the nature of the allegations made in the complaint and also the grounds raised in the present criminal petition, several factual controversies are involved and these factual controversies cannot be gone into in a criminal petition u/s 482 of the Code.
Sri C. Praveen Kumar, the learned Counsel representing the first respondent-complainant had taken this Court through the averments made in the complaint and would maintain that the grounds, which are being taken are by way of defence and hence, these aspects cannot be gone into at this stage and as such, the Criminal Petition is liable to be dismissed.
Heard the learned counsel.
Perused the averments made in the complaint, also the other material placed before this Court and the specific grounds raised in the present criminal petition filed u/s 482 of the Code.
It is stated that the petitioner-accused had borrowed an amount of Rs. 7,00,000/- from the first respondent/complainant on 14.07.2008 agreeing to repay the same with an interest at 18% p.a. payable every month by the even date and further agreed to discharge the said debt within 3 months, and with these and other conditions the accused executed a simple mortgage deed in favour of the first respondent/complainant on the same day and registered it; that subsequently upon several demands, the accused has given a cheque enclosed bearing No. 786977 dated 26.06.2009 drawn on Ing. Vysya Bank, Anakapalli Branch for an amount of Rs. 8,30,000/- to the respondent-complainant towards the discharge of the above said mortgage debt; that thereupon, when the respondent-complainant herein presented the said cheque for collection to his Banker, Indian Bank, at V. Madugula, on 09.07.2009 the cheque was returned to the respondent-complainant herein by his banker stating that the amounts could not be released due to the insufficiency of funds in the account of the petitioner/accused. Thereupon the respondent-complainant gave a statutory notice to the petitioner/accused on 11.07.2009 and the same was received by him on 17.07.2009. The petitioner-accused upon receipt of the said notice had failed to pay the said amount of Rs. 8,30,000/- to the respondent-complainant, on the other hand, he got issued a reply notice with all false and frivolous allegations. All the allegations in the said reply notice had been specifically denied as false and do not bind on the respondent-complainant herein. Further the statutory period of payment elapsed by 31.08.2009 and hence the complaint had been filed to take cognizance of the offence u/s 138 of the Negotiable Instruments Act and issue process to the petitioner-accused and award compensation to the respondent-complainant herein directing the petitioner-accused to pay an amount which will be equal to the cheque amount i.e., Rs. 8,30,000/- along with interest thereon at 18% per annum from the date of cheque till realization, to the respondent/complainant herein.
Further, it is stated that the petitioner-accused denied all the aforesaid allegations made in the complaint in C.C. No. 19 of 2009 on the file of the Judicial Magistrate of First Class at V. Madugula. It is the case of the petitioner/accused that the Rl is the father of one Venkata Padmini and the grandfather of one Sai Sravan. It is further the case of the petitioner/accused that in the year 2005, said Venkata Padmini and Sai Sravan have leased out a building at Chodavaram Village under a Lease Deed dated 22.12.2005 to the petitioner/accused and subsequently the petitioner/accused had purchased the said building having D.No. 17-26 in Chodavaram for a valuable consideration of Rs. 20,30,000/- under a registered Sale Deed dated 14.07.2009 from the said Venkata Padmini and Sai Sravan. The respondent/complainant was also one of the attestors of said registered Sale Deed. In fact, the said daughter and grandson of the respondent No. 1 herein have the disputes in respect of the properties with the father-in-law of said Padmini namely Poosarla Nookayya Setty. Neither the respondent No. 1 herein or his daughter had disclosed about the said disputes and suppressed the same by the time of said sale transaction in favour of the petitioner/accused. After execution of the said sale deed, on the said date @f itself, when petitioner herein came to know about those disputes, the petitioner questioned the respondent herein and his daughter about the non-discloser of the disputes. Then the R1 herein made the petitioner to believe that the respondent No. 1 will look after all the affairs and the disputes and asked the petitioner to execute the mortgage deed so as to look after the affairs in respect of the property. By that time the petitioner herein already paid the entire sale consideration to the daughter and grand son of 1st respondent herein and as 1st respondent and his daughter refused to return the said amount and as there was no option, the petitioner acted as per the coercion of 1st respondent herein and signed on the said registered mortgage Deed and gave two blank signed cheques bearing Nos. 786977, 786978 to 1st respondent on his demand. For the above said reasons only and to protect his purchase, the petitioner was obliged and forced to sign on the said registered mortgage deed and issued the said cheque No. 786977 referred by respondent in his notice. In fact, 1st respondent had not lent any amount, much less Rs. 7,00,000/- to the petitioner-accused under the said registered Mortgage Deed, and hence, the said Mortgage Deed is not true and a valid document and it is not supported by consideration. So also the cheque referred in the notice and the other cheque which is in 1st respondent''s custody are not drawn by petitioner on his account and he had not issued the same to respondent No. 1 to discharge part or whole of any debt or other liability to 1st respondent. In fact, there is no liability or debt to be discharged by the petitioner to the respondent. The petitioner had not borrowed any amount from respondent No. 1 as alleged and had not owed any amount to 1st respondent. The petitioner is not personally liable to discharge the said mortgage debt to 1st respondent. The said cheques which were obtained by 1st respondent including the cheque referred in 1st respondent''s notice, are not true, valid and binding on petitioner. The petitioner is not burdened with any liability for bouncing of said cheque and hence, the C.C. No. 19 of 2009 on the file of the Judicial Magistrate of First Class, V. Madugula is liable to be quashed.
It is also stated that two suits had already been filed, one by Poosarla Nookayya Setty and another by Smt. Kattamoori Ratna Sridevi. It is also submitted that Sri Poosarla Nookayya Setty, who is the plaintiff in Suit O.S. No. 61 of 2008 on the file of the Senior Civil Judge''s Court, Chodavaram filed the said suit against the petitioner and Gayatri Educational Society, who are defendants 1 and 2, for eviction from the plaint schedule property and to handover vacant possession of plaint schedule property to the plaintiff and for recovery of arrears etc., and the same is pending. It is submitted that Smt. Kattamoori Ratna Sridevi, who is the plaintiff in Suit O.S. No. 238 of 2008 on the file of the II Additional District Judge''s Court, Visakhapatnam, filed the said suit against the petitioner and the plaintiff in O.S. No. 61 of 2008 on the file of the Senior Civil Judge''s Court, Chodavaram and others, for eviction and for recovery of possession and the same also is pending. It is stated that the trial of the C.C. No. 19 of 2009 on the file of the Judicial Magistrate of First Class, V. Madugula, had just commenced and the complainant''s/lst respondent''s evidence is going on.
It is also stated that both the suits were filed earlier to C.C. No. 19 of 2009 on the file of the Judicial Magistrate of First Class, V. Madugula and they are for same relief. It is submitted that the petitioner had already paid the entire sale consideration to the daughter and the grand son of the 1st respondent and she refused to return the said amount and as there was no option, the petitioner acted as per the coercion of 1st respondent and signed on the registered Mortgage Deed and gave two blank signed cheques bearing Nos. 786977, 786978 to 1st respondent on his demand. It is submitted that Section 138 of the Negotiable Instruments Act has no application. It is submitted that there is no personal liability or debt to be discharged by the petitioner.
Specific stand had been taken that the petitioner had not borrowed any amount from 1st respondent as alleged in the notice of 1st respondent and had not owed any amount to the 1st respondent and hence, the C.C. No. 19 of 2009 is liable to be quashed.
The specific ground which had been taken is that inasmuch as relating to the same subject matter the civil suits are pending, to permit the further proceedings to be proceeded with in this C.C. under challenge would amount to abuse of process of law.
Section 482 of the Code reads as hereunder:
Saving of inherent powers of High Court:
Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.
In Inder Mohan Goswami and Another Vs. State of Uttaranchal and Others, the Apex Court at paras 23, 24 and 27 observed that
This Court in a number of cases has laid down the scope and ambit of courts powers u/s 482 Cr.P.C. Every High Court has inherent power to act ex debito justitiae to do real and substantial justice, for the administration of which alone it exists, or to prevent abuse of the process of the court. Inherent power u/s 482 Cr.P.C. can be exercised:
(i) to give effect to an order under the code;
(ii) to prevent abuse of the process of court, and
(iii) to otherwise secure the ends of justice.
Inherent powers u/s 482 Cr.P.C. though wide have to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in this section itself. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the Court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the Statute.
The powers possessed by the High Court u/s 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. The Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court could normally refrain from giving a prima facie decision in a case where all the facts are incomplete and hazy: moreso, when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of such magnitude that they cannot be seen in their true perspective without sufficient material. Of course, no hard and fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceedings at any stage.
In R.P. Kapur Vs. The State of Punjab, the Apex Court summarized some categories of cases where inherent powers can be exercised to quash the proceedings.
(i) where it manifestly appears that there is a legal bar against the institution or continuance of the proceedings;
(ii) (ii) where the allegations in the first information report or complaint taken at their face value and accepted in their entirety do not constitute the offence alleged;
(iii) (iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.
In State of Karnataka Vs. L. Muniswamy and Others, the Apex Court observed that
the wholesome power u/s 482, Cr.P.C. entitles the High Court to quash a proceeding when it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the court or that the ends of justice require that the proceeding ought to be quashed. The High Courts have been invested with inherent powers, both in civil and criminal matters, to achieve a salutary public purpose. A court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. The court observed in this case that ends of justice are higher than the ends of mere law though justice must be administered according to laws made by the legislature. This case has been followed in a large number of subsequent cases of this Court and other courts.
In Madhavrao Jiwajirao Scindia and Others Vs. Sambhajirao Chandrojirao Angre and Others, the Apex Court observed that
The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations, as made, prima facie, establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilized for any oblique purpose and where in the opinion of the court chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage.
In R.S. Raghunath Vs. State of Karnataka and another, the Apex Court while laying down the guidelines observed as under:
(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers u/s 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated u/s 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
In Janata Dal Vs. H.S. Chowdhary and Others, the Apex Court observed that
The criminal courts are clothed with inherent power to make such orders as may be necessary for the ends of justice. Such power though unrestricted and undefined should not be capriciously or arbitrarily exercised, but should be exercised in appropriate cases, ex debito justitiae to do real and substantial justice for the administration of which alone the courts exist. The powers possessed by the High Court u/s 482 of the Code are very wide and the very plentitude of the power requires great caution in its exercise. Courts must be careful to see that its decision in exercise of this power is based on sound principles.
In Roy V.D. Vs. State of Kerala, it was observed that
It is well settled that the power u/s 482 Cr.P.C., has to be exercised by the High Court, inter alia, to prevent abuse of the process of any court or otherwise to secure the ends of justice. Where criminal proceedings are initiated based on illicit material collected on search and arrest which are per se illegal and vitiate not only a conviction and sentence based on such material but also the trial itself, the proceedings cannot be allowed to go on as it cannot but amount to abuse of the process of the court; in such a case not quashing the proceedings would perpetuate abuse of the process of the court resulting in great hardship and injustice to the accused. In our opinion, exercise of power u/s 482, Cr.P.C. to quash proceedings in a case like the one on hand, would indeed secure the ends of justice.
In Zandu Pharmaceutical Works Ltd. and Others Vs. Md. Sharaful Haque and Others, the Apex Court observed that
It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers, court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto.
In Indian Oil Corporation v. NEPC India Ltd. and Ors. (2000) 6 SCC 736, the Apex Court observed
that again cautioned about a growing tendency in business circles to convert purely civil disputes into criminal cases. The court noticed the prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. The court further observed that any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discouraged.
This Court had carefully gone through the averments made in the complaint and also the other material placed before this Court. It may be true that the civil suits also may be pending disposal before the competent civil Courts. However, in the light of the nature of averments made in the complaint and also the defence specified in the grounds raised in the present criminal petition filed u/s 482 of the Code, this Court is thoroughly satisfied that these are factual aspects, which have to be decided at an appropriate stage. This Court is not inclined to express any further opinion touching the other merits and demerits of the case. It is needless to say that the Court below shall decide the C.C., which is sought to be quashed by this Court, on its own merits not being influenced by any of the observations made by this Court in the present criminal petition.
Accordingly, the Criminal Petition shall stand dismissed.