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Judgment
Vaman Rao, J.—Heard both the sides.
This petition u/s 482 of the Criminal Procedure Code, 1973, seeks quashing of proceedings in C. C. No. 381 of 1998, on the file of the Third Additional Judicial First Class Magistrate, Kakinada, in which the petitioner-company is sought to be prosecuted for the offence u/s 138 of the Negotiable Instruments Act, 1881.
The brief facts leading to this petition may be stated as follows :
Accused No. 1 (petitioner herein)--the Janachaitanya Housing (Pvt.) Limited has offered to sell their plots to public. The complainant (respondent No. 1 herein) joined as a member in that scheme and booked two plots and paid Rs. 30,400 towards initial payment and agreed to pay the balance amount in instalments as fixed by the company. Subsequently, due to financial difficulties, the complainant could not pay the instalments and she approached the housing company on May 15, 1998, expressing her inability to pay the future instalments and requested for return of her money already paid. Though it is not specifically mentioned but it appears from the tenor of the complainant that accused No. 1-com-pany agreed for some refund of the amount paid by the complainant. Accordingly, on June 8, 1998, the second accused who is said to be an employee of Janachaitanya Housing Company issued a cheque for an amount of Rs. 16,300 in favour of the complainant. Later on, the complainant presented the cheque at their bank at Kakinada to be credited to her husband''s account. The said cheque was returned with an endorsement "insufficient funds".
Later on, the complainant got issued notice which was received by the petitioner who sent reply with false allegations. It is averred that the accused colluded together to cause wrongful loss to the complainant.
The contention of learned counsel for the petitioner--Sri K. V. Bhanu Prasad is that the complaint as against the petitioner-company cannot be maintained inasmuch as admittedly the cheque in question was issued by one V. Johar (A-2)--respondent No. 2 herein.
Learned counsel for the first respondent--Sri Ramakrishna Rao on the other hand contends that the cheque was issued by accused No. 2 in connivance with accused No. 1 and hence accused No, 1 must also be held to be liable.
It may be mentioned here that in a counter affidavit filed along with the stay/vacate petition by the general power of the complainant, it is stated that in the application, the complainant filed before the housing company for permitting her to withdraw from the contract and requesting the refund of money already paid by her, she made a request to send the money payable to her through the development manager of the company Sri V. Johar (accused No. 2). She did not request the company to pay the money to V. Johar. The case of the petitioner as stated in the petition is that as per the letter written by the complainant, after deducting their commission, they paid an amount of Rs. 11,177 by way of cheque to the second respondent (the second accused) as desired by the first respondent (the complainant).
Thus, the controversy appears to be that the complainant requested Janachaitanya Housing Company to refund her money through the second respondent--the second accused, V. Johar and not to the second respondent. Even assuming this version to be true, this does not make any difference as far as the liability of the petitioner-company for the dishonour of the cheque issue by accused No. 2, Sri V. Johar is concerned. Assuming'' that accused No. 1 disregarded the instructions of the complainant and instead of paying the amount to her, paid the amount to accused No. 2, that is a matter pertaining to a breach of contract or understanding between the complainant and accused No. 1. That has no bearing on the criminal liability arising u/s 138 of the Negotiable Instruments Act. The provisions in Section 138 of the Negotiable Instruments Act, do not admit of any doubt that the person who is liable criminally for the bouncing of the cheque will be the one who has drawn the cheque and issued the cheque.
In this case, admittedly, the cheque in question was issued by accused No. 2--V. Johar and not "Janachaitanya Housing Company (P) Limited". The question of the said company being liable u/s 138 of the Negotiable Instruments Act in respect of the dishonour of the cheque issued by V. Johar, even if that person is an employee of the company in question, would scarcely arise inasmuch as the cheque is not stated to have been issued on behalf of the company.
Under these circumstances, there can be no escape from holding that the criminal proceedings against the petitioner cannot be maintained.
It may be mentioned here that there is a misdescription of the company in the complaint. In the complaint, the first accused is described as "the branch manager, Janachaitanya Housing (Private) Limited, Kaki-nada". In view of what has been described above, neither the branch manager of Janachaitanya Housing (Pvt.) Limited, Kakinada, nor the company itself would be liable in respect of cheque issued by accused No. 2.
In the result, the petition is allowed and the criminal proceedings against the petitioner-company in C. C. No. 381 of 1998, on the file of the Third Additional Judicial First Class Magistrate, Kakinada, are quashed.