N.I. Act - sec.138 and sec.141 - sec.482 of Cr.P.C.- simple associate can be added as accused in cheque bounce case - NO - their lordships held that Admittedly, the cheque was given by A2 and it is not signed by A3. As already referred above, there is no allegation whatsoever in the complaint as to the role of the petitioner and her connection with the firm in day to day affairs. When there is no material against the petitioner concerning the bounced cheque, continuing proceedings against her would amount to abuse of process of Court. Therefore, exercising powers under Section 482 Cr.P.C., the same have to be quashed.=
The
petitioner herein is shown as A3 and she was referred as associate
person in the complaint. The main contention of the petitioner is
that no case was made out against her under Section 138 of the
NI Act and that she is no way connected with the purchase of
goods by A1 and A2 and issue of cheque. =
Admittedly, the cheque was given by A2 and it is not
signed by A3. As already referred above, there is no allegation
whatsoever in the complaint as to the role of the petitioner and
her connection with the firm in day to day affairs. When there is
no material against the petitioner concerning the bounced cheque,
continuing proceedings against her would amount to abuse of
process of Court. Therefore, exercising powers under Section
482 Cr.P.C., the same have to be quashed.
8. For these reasons, the criminal petition is allowed, and the
proceedings against the petitioner in C.C.No.167 of 2007 are
hereby quashed and since the C.C is of the year 2007, I feel that
the trial Court has to be directed to expedite the trial. Therefore,
the trial Court is directed to take up the trial and dispose it of as
expeditiously as possible in accordance with law, preferably
within a period of six months from the date of receipt of this
order.
______________________ _
2014 - July- Part - http://judis.nic.in/judis_andhra/filename=11610
THE HONBLE SRI JUSTICE S. RAVI KUMAR
CRIMINAL PETITION No. 5753 of 2012
01-07-2014
Jasti Jayalaxmi....Petitioner / A3
1. State of A.P., (through Public Prosecutor) and another...Respondent
COUNSEL FOR PETITIONER: Sri P Prabhakar Reddy
COUNSEL FOR RESPONDENT :Sri Sharad Sanghi
<Gist:
>Head Note:
?CITATIONS:(2014) 4 SCC 704
2009 (2) ALD (Cri) 3
THE HONBLE SRI JUSTICE S. RAVI KUMAR
CRIMINAL PETITION No. 5753 of 2012
ORDER:
This is a petition to quash proceedings in C.C.No.167 of
2007 on the file of I Additional Metropolitan Magistrate, City
Criminal Courts, at Hyderabad.
2. Brief facts leading to this criminal petition are as follows:
The second respondent herein filed complaint before the
Magistrate alleging that the cheque issued by A2 for Rs.1,70,266
drawn on Syndicate Bank, Mulukuduru Branch, Guntur District,
was dishonoured due to insufficiency of funds and that the
accused has committed offence under Section 138 of the
Negotiable Instruments Act (for short, the NI Act). The
petitioner herein is shown as A3 and she was referred as associate
person in the complaint. The main contention of the petitioner is
that no case was made out against her under Section 138 of the
NI Act and that she is no way connected with the purchase of
goods by A1 and A2 and issue of cheque.
3. Advocate for the petitioner submitted that when there are
no allegations in the complaint against the petitioner attributing
anything with reference to the transaction or issue of cheque
except naming her as accused and showing her as associate
person, the proceedings against her have to be quashed. He
further submitted that in a similar set of facts this Court in
Crl.P.No.3313 of 2012 is pleased to quash proceedings against
the same petitioner on a complaint filed by the very same person.
4. On the other hand, advocate for second respondent
submitted that para 5 of the complaint would clearly disclose the
role of petitioner herein and there are specific allegations against
her and therefore the objection of the advocate for petitioner is
not tenable. He further submitted that as per the document filed
along with the counter affidavit, the petitioner is shown under the
caption name of the persons dealing and in another agreement
she is shown in the column name of the partner relating to the
first accused, therefore, she is liable for the cheque amount and
these aspects have to be examined during trial. He submitted
Honble Supreme Court in a recent decision in HARYANA
STATE COOPERATIVE SUPPLY AND MARKETING
FEDERATION LIMITED v. JAYAM TEXTILES AND
ANOTHER observed
. procedural defects and irregularities, which are
curable, should not be allowed to defeat substantive rights
or to cause injustice. Procedure, a handmaiden to justice,
should never be made a tool to deny justice or perpetuate
injustice, by any oppressive or punitive use.
5. Advocate for second respondent also contended that
Section 141 of the NI Act clearly define association of
individuals and the petitioner who is shown as associate person
would clearly fall under the provisions of Section 141 of the NI
Act. For this proposition he cited a ruling of the High Court of
Bombay, at Aurangabad, in a decision in DADASAHED
RAWAL COOPERATIVE BANK OF DONDAICHA LTD.,
THROUGH ITS HOLDER OF POWER OF ATTORNEY SHRI
JINTENDRASING ROOPSING GIRASE v. RAMESH S/O
JAWRILAL JAIN, SMT. SUSHILA S/O RAMESH JAIN AND
THE STATE OF MAHARASHTRA . He submitted that the
petitioner is to be treated as an agent of A1 and A2 and in that
capacity also she is liable for the transaction and for this
proposition he relied on a ruling of this Court decided in
Crl.P.Nos. 10231, 10232, 10300 and 10301 of 2013 dated
23.06.2014.
6. I have gone through the material papers filed along with the
petition and also the counter affidavit and also the documents
filed along with the counter affidavit. As seen from the
complaint this petitioner is referred as associate person and
except naming her no specific allegations or averments are made
against her. A careful reading of the allegations in para 5 of the
complaint, I am unable to accept the submission of the advocate
for second respondent because the word used is accused person
and all the averments refer to the person who issued the cheque.
No doubt in the last lines of the para, it is mentioned that A1, A2
and A3 returned the registered notice, but nothing is referred in
the above sentences about the role of A1 or A3. So the
contention that this para refers to A3 also cannot be accepted.
Now coming to contention that procedural defects cannot be
countenanced, in this case, there are no procedural defects, on the
other hand it is a defect in pleading and placing sufficient
material. There is absolutely no reference in the complaint about
the role of the petitioner. As seen from the documents filed along
with the counter affidavit the petitioner is aware of the fact that
the petitioner name was referred in two agreements one in the
capacity of partner and in the other as a dealing person. In spite
of that nothing is pleaded and nothing is mentioned about the
petitioner in the complaint. It is not a case where all the facts are
pleaded but the party forgot to file the documents. On the other
hand, it is otherway that the complainant has all the papers with
him and has every knowledge about the role of each accused, but
for the reasons best known to the complainant, nothing is stated
in the complaint against the petitioner except mentioning her
name and referring her as associate person.
7. Admittedly, the cheque was given by A2 and it is not
signed by A3. As already referred above, there is no allegation
whatsoever in the complaint as to the role of the petitioner and
her connection with the firm in day to day affairs. When there is
no material against the petitioner concerning the bounced cheque,
continuing proceedings against her would amount to abuse of
process of Court. Therefore, exercising powers under Section
482 Cr.P.C., the same have to be quashed.
8. For these reasons, the criminal petition is allowed, and the
proceedings against the petitioner in C.C.No.167 of 2007 are
hereby quashed and since the C.C is of the year 2007, I feel that
the trial Court has to be directed to expedite the trial. Therefore,
the trial Court is directed to take up the trial and dispose it of as
expeditiously as possible in accordance with law, preferably
within a period of six months from the date of receipt of this
order.
______________________ _
JUSTICE S. RAVI KUMAR
01st July, 2014
The
petitioner herein is shown as A3 and she was referred as associate
person in the complaint. The main contention of the petitioner is
that no case was made out against her under Section 138 of the
NI Act and that she is no way connected with the purchase of
goods by A1 and A2 and issue of cheque. =
Admittedly, the cheque was given by A2 and it is not
signed by A3. As already referred above, there is no allegation
whatsoever in the complaint as to the role of the petitioner and
her connection with the firm in day to day affairs. When there is
no material against the petitioner concerning the bounced cheque,
continuing proceedings against her would amount to abuse of
process of Court. Therefore, exercising powers under Section
482 Cr.P.C., the same have to be quashed.
8. For these reasons, the criminal petition is allowed, and the
proceedings against the petitioner in C.C.No.167 of 2007 are
hereby quashed and since the C.C is of the year 2007, I feel that
the trial Court has to be directed to expedite the trial. Therefore,
the trial Court is directed to take up the trial and dispose it of as
expeditiously as possible in accordance with law, preferably
within a period of six months from the date of receipt of this
order.
______________________ _
2014 - July- Part - http://judis.nic.in/judis_andhra/filename=11610
THE HONBLE SRI JUSTICE S. RAVI KUMAR
CRIMINAL PETITION No. 5753 of 2012
01-07-2014
Jasti Jayalaxmi....Petitioner / A3
1. State of A.P., (through Public Prosecutor) and another...Respondent
COUNSEL FOR PETITIONER: Sri P Prabhakar Reddy
COUNSEL FOR RESPONDENT :Sri Sharad Sanghi
<Gist:
>Head Note:
?CITATIONS:(2014) 4 SCC 704
2009 (2) ALD (Cri) 3
THE HONBLE SRI JUSTICE S. RAVI KUMAR
CRIMINAL PETITION No. 5753 of 2012
ORDER:
This is a petition to quash proceedings in C.C.No.167 of
2007 on the file of I Additional Metropolitan Magistrate, City
Criminal Courts, at Hyderabad.
2. Brief facts leading to this criminal petition are as follows:
The second respondent herein filed complaint before the
Magistrate alleging that the cheque issued by A2 for Rs.1,70,266
drawn on Syndicate Bank, Mulukuduru Branch, Guntur District,
was dishonoured due to insufficiency of funds and that the
accused has committed offence under Section 138 of the
Negotiable Instruments Act (for short, the NI Act). The
petitioner herein is shown as A3 and she was referred as associate
person in the complaint. The main contention of the petitioner is
that no case was made out against her under Section 138 of the
NI Act and that she is no way connected with the purchase of
goods by A1 and A2 and issue of cheque.
3. Advocate for the petitioner submitted that when there are
no allegations in the complaint against the petitioner attributing
anything with reference to the transaction or issue of cheque
except naming her as accused and showing her as associate
person, the proceedings against her have to be quashed. He
further submitted that in a similar set of facts this Court in
Crl.P.No.3313 of 2012 is pleased to quash proceedings against
the same petitioner on a complaint filed by the very same person.
4. On the other hand, advocate for second respondent
submitted that para 5 of the complaint would clearly disclose the
role of petitioner herein and there are specific allegations against
her and therefore the objection of the advocate for petitioner is
not tenable. He further submitted that as per the document filed
along with the counter affidavit, the petitioner is shown under the
caption name of the persons dealing and in another agreement
she is shown in the column name of the partner relating to the
first accused, therefore, she is liable for the cheque amount and
these aspects have to be examined during trial. He submitted
Honble Supreme Court in a recent decision in HARYANA
STATE COOPERATIVE SUPPLY AND MARKETING
FEDERATION LIMITED v. JAYAM TEXTILES AND
ANOTHER observed
. procedural defects and irregularities, which are
curable, should not be allowed to defeat substantive rights
or to cause injustice. Procedure, a handmaiden to justice,
should never be made a tool to deny justice or perpetuate
injustice, by any oppressive or punitive use.
5. Advocate for second respondent also contended that
Section 141 of the NI Act clearly define association of
individuals and the petitioner who is shown as associate person
would clearly fall under the provisions of Section 141 of the NI
Act. For this proposition he cited a ruling of the High Court of
Bombay, at Aurangabad, in a decision in DADASAHED
RAWAL COOPERATIVE BANK OF DONDAICHA LTD.,
THROUGH ITS HOLDER OF POWER OF ATTORNEY SHRI
JINTENDRASING ROOPSING GIRASE v. RAMESH S/O
JAWRILAL JAIN, SMT. SUSHILA S/O RAMESH JAIN AND
THE STATE OF MAHARASHTRA . He submitted that the
petitioner is to be treated as an agent of A1 and A2 and in that
capacity also she is liable for the transaction and for this
proposition he relied on a ruling of this Court decided in
Crl.P.Nos. 10231, 10232, 10300 and 10301 of 2013 dated
23.06.2014.
6. I have gone through the material papers filed along with the
petition and also the counter affidavit and also the documents
filed along with the counter affidavit. As seen from the
complaint this petitioner is referred as associate person and
except naming her no specific allegations or averments are made
against her. A careful reading of the allegations in para 5 of the
complaint, I am unable to accept the submission of the advocate
for second respondent because the word used is accused person
and all the averments refer to the person who issued the cheque.
No doubt in the last lines of the para, it is mentioned that A1, A2
and A3 returned the registered notice, but nothing is referred in
the above sentences about the role of A1 or A3. So the
contention that this para refers to A3 also cannot be accepted.
Now coming to contention that procedural defects cannot be
countenanced, in this case, there are no procedural defects, on the
other hand it is a defect in pleading and placing sufficient
material. There is absolutely no reference in the complaint about
the role of the petitioner. As seen from the documents filed along
with the counter affidavit the petitioner is aware of the fact that
the petitioner name was referred in two agreements one in the
capacity of partner and in the other as a dealing person. In spite
of that nothing is pleaded and nothing is mentioned about the
petitioner in the complaint. It is not a case where all the facts are
pleaded but the party forgot to file the documents. On the other
hand, it is otherway that the complainant has all the papers with
him and has every knowledge about the role of each accused, but
for the reasons best known to the complainant, nothing is stated
in the complaint against the petitioner except mentioning her
name and referring her as associate person.
7. Admittedly, the cheque was given by A2 and it is not
signed by A3. As already referred above, there is no allegation
whatsoever in the complaint as to the role of the petitioner and
her connection with the firm in day to day affairs. When there is
no material against the petitioner concerning the bounced cheque,
continuing proceedings against her would amount to abuse of
process of Court. Therefore, exercising powers under Section
482 Cr.P.C., the same have to be quashed.
8. For these reasons, the criminal petition is allowed, and the
proceedings against the petitioner in C.C.No.167 of 2007 are
hereby quashed and since the C.C is of the year 2007, I feel that
the trial Court has to be directed to expedite the trial. Therefore,
the trial Court is directed to take up the trial and dispose it of as
expeditiously as possible in accordance with law, preferably
within a period of six months from the date of receipt of this
order.
______________________ _
JUSTICE S. RAVI KUMAR
01st July, 2014
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