2002 Supreme(AP) 1183

Andhra Pradesh High Court
Judges : C.Y.SOMAYAJULU
PRIYATAM SEN - Appellant
Versus
KANCHANA SIVA PRASAD - Respondent
Decided On : 10-08-02

Headnote:

Criminal Matter – Criminal Law – Indian Penal Code,1860 - section 420 – Evidence - Negotiable Instruments act, - Section 138 - Respondent is that he and his brother are carrying on business in dupion Silk under name and style of Silk Fabrics and have business transactions with petitioner, who is proprietor of M/s. Super Exports, from five years and that they, basing on orders placed by petitioner, used to prepare cotton material and send same to Bangalore through transport and that petitioner used to pay cash or send post-dated cheques towards value of the material supplied to him by them, and on some occasions petitioner used to request them not to present cheques and used to pay amounts, covered by cheques, in cash and take return of those post-dated cheques - As per order placed by petitioner, material worth was supplied to him, towards value of which petitioner gave eleven cheques for amount each, six cheques with two cheques with , one cheque with and two cheques with - Three cheques i. e. , were dishonored on their presentation to Bank - Besides amount covered by those cheques an amount of towards principal and towards interest is still due from petitioner - Petitioner failed to pay said amount when demanded by them asserting that he does not owe any amount to them - Petitioner, who wields considerable influence at Bangalore, cheated him (1st respondent) and other businessmen at Duggayapally by issuing false cheques - Contention of learned Counsel for petitioner is that averments in FIR only show that petitioner failed to make payment for goods supplied to him by 1st respondent and his brother, which does not create any criminal liability on part of petitioner and since there is not even a whisper in complaint that petitioner even harboured an intention to cheat 1st respondent when he placed an order for supply of material with 1st respondent and since admittedly some of cheques issued by petitioner were honoured, dishonour of some of cheques issued by petitioner, if at all, would be an offence under Section 138 of Negotiable Instruments act, (the Act) but not an offence under section 420 IPC - It is his contention that an accidental mistake relating to cheque numbers crept into affidavit of petitioner filed along with petition, and after noticing said mistake, petitioner with leave of Court, filed a fresh affidavit giving correct number of cheques and contended that since bounched cheques were in fact issued in name of Subba Rayudu, but not in name of 1st respondent, finding that there was no scope for 1st respondent initiating proceedings under Section 138 of Act, he not being payee or holder in due course of bounched cheques and since time for initiation of proceedings under Section 138 of Act also lapsed, 1st respondent with a view to take a short cut route for recovery of amount allegedly due to him, by using arm twisting methods – Held, Court says that a criminal proceeding cannot be quashed merely because civil remedy is available and that civil and criminal remedies are not mutually exclusive, but are co-existive and that object of criminal proceedings is to punish offender -In Nagpur Steel and alloys Supreme Court held that merely because an offence was committed during course of a commercial transaction, High Court would not be justified in quashing complaint, and question as to whether allegations in complaint are true or not are decided during course of trial - Bounced cheques were not drawn in name of 1st respondent and were drawn - payee is not complainant - Section 142 of Act in no uncertain words says that no Court shall take cognizance of an offence under Section 138 of Act except on a complaint made by payee or holder in due course of cheque - So in view of embargo placed by Section 142 of Act, police registering a case under Section 138 of Act and investigating it and filing a charge-sheet not arise - A plain reading of complaint given by 1st respondent only shows a breach of contract by petitioner - Since dishonest intention on part of petitioner when he placed an order with petitioner is not spelt out in complaint, it is clear that 1st respondent is trying to put criminal law into motion for recovery of amount due to him, without seeking remedy open to him under civil law, which is but an abuse of process of Court - Complaint against 1st respondent is liable to be quashed - Point is answered accordingly - Petition Allowed