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2018 Supreme(AP) 269
IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH
U. Durga Prasad Rao, J.
Chittuluri Venkata Subramanya Rajaram – Petitioner
Versus
Kotagiri Shivani and another – Respondents
Criminal Petition No.2889 of 2018
Decided On : 19-06-2018
For the Petitioner: M/s. Bharadwaj Associates
For the Respondent: Sri. L.Venkateshwar Rao
Headnote:Code of criminal procedure, Sec. 482 – Negotiable Instrument act 1881 section 138 – Indian penal code, Sec.498-A, 406 r/w 34 – Petition is filed seeking to quash the proceedings registered against petitioner under NI act – Husband and wife agreed on mutual consent to have a divorce, the accused and the husband agreed to pay Rs.83 lakh towards permanent alimony – on the confirmation of the divorce the wife received jewellery worth Rs.60,75,000/– and balance of Rs. 22,25,000/- to be paid by post dated cheques – the accused took upon himself to pay the amount of Rs.22,25,000/- by issuing three cheques namely Rs.4,25,000/– and two cheques of Rs.9,00,000/- – All the three checks were returned stating “insufficient funds” and “payment stop by Drawer” respectively – accused contended that he was not liable to pay to the complainant instead he only took the debt of the husband, he was never indebted to the complainant – Held, the petitioner/accused himself offered to pay the amount agreed between the husband and the wife, thus making himself liable for the non-payment – criminal petition dismissed.
Key Points: - The accused offered three post-dated cheques as guarantor for his brother's balance of alimony and the court holds this falls within Section 138 NI Act liability (!) (!) (!) - Beena Shabeer v. Beena Shabeer (SC) clarified that liability cannot be avoided if the cheque is issued for discharge of any debt or other liability and returned unpaid; this applies to guarantor scenarios (!) (!) (!) - The cheques in question were issued voluntarily by the guarantor and not under coercion; liability is treated as debt or other liability of the guarantor (!) (!) - The High Court’s reasoning distinguishing Harish Kapoor’s case is rejected in favor of Beena Shabeer’s interpretation for guarantors (!) (!) - The petition under Section 482 Cr.P.C. to quash Section 138 proceedings is dismissed; the criminal petition is accordingly rejected (!) (!) - Facts: divorce by mutual consent, alimony of Rs.83,00,000; jewellery worth Rs.60,75,000 was returned; balance Rs.22,25,000 supported by post-dated cheques; cheques dishonored (!) (!) (!) (!) - The accused stood as guarantor for the balance payment and offered cheques; there was no coercion stated for issuance (!) (!) - Important cited jurisprudence: ICDS Ltd. v. Beena Shabeer; Harish Kapoor v. Akansha Gupta (distinguished) (!) (!) (!) (!)
How to determine whether a guarantor can be held liable under Section 138 of the NI Act where the cheque is issued by him for the balance of alimony owed by the principal debtor?
What is the interpretation of "where any cheque" and "any debt or other liability" in Section 138 NI Act as it applies to guarantors?
What are the circumstances under which a petition under Section 482 Cr.P.C. can be used to quash proceedings under Section 138 NI Act?
In this petition filed under Section 482 Cr.P.C., the petitioner/accused seeks to quash the proceedings in C.C.No.113 of 2017 on the file of Additional Judicial Magistrate of First Class, Karimnagar registered against him for the offence under Section 138 of Negotiable Instruments Act, 1881 (for short N.I Act”).
2. The brief allegations of the private complaint are the complainant married one Chittuluri Venkata Subba Naveen Kumar cousin of accused—Chittuluri Venkata Subramanya Rajaram, who is looking after the family affairs. While so, complainant and Ch. V.S. Naveen Kumar took divorce by mutual consent in O.P.No.985 of 2012 on the file of Family Judge, City Civil Court, Hyderabad. Before taking divorce, the accused and Ch.V.S.Naveen Kumar agreed to pay lumpsum amount of Rs.83 lakhs towards permanent alimony including the return of gifts presented by the father of complainant at the time of her marriage. On 07.02.2013, on which date divorce was sanctioned by the Court, the accused and his brother—Naveen Kumar returned jewellery worth Rs.60,75,000/- which were presented by the father of the complainant at the time of her marriage and for the balance amount of Rs.22,25,000/- accused requested the complainant and her father to accept the post-dated cheques by giving consent for divorce. Accordingly, the accused issued three post-dated cheques of various dates for the balance amount of Rs.22,25,000/-. Thereafter, the accused approached the father of the complainant stating that due to financial constraints he failed to arrange the payments and requested to accept fresh cheques. Believing his words, the complainant accepted three fresh cheques. When she presented first cheque bearing No.012339 dated 28.12.2013 for Rs.4,25,000/- with her banker HDFC Bank Limited, Karimnagar, it was returned with the endorsement “insufficient funds”. Likewise, when the complainant presented the other two cheques bearing Nos.012340 and 012341 dated 07.01.2014 and 16.01.2014 respectively for Rs.9,00,000/- each, they too were returned on the ground “payment stopped by the drawer”. Hence, the accused is liable for the offence punishable under Section 138 of N.I Act. The Additional Judicial Magistrate of First Class, Karimnagar took cognizance of the case and registered the same as C.C.No.113 of 2017.
Hence, the instant Criminal Petition.
3. Heard arguments of Sri Vedula Venkata Ramana, learned senior counsel appearing for petitioner and learned Additional Public Prosecutor for the State.
4. Learned Senior Counsel Sri Vedula Venkata Ramana, would fulminate the maintainability of the complaint on the argument that even if complaint allegations were taken to be true, the accused, who is the brother of the husband of complainant took upon himself the responsibility of payment of the balance amount of Rs.22,25,000/- due to the complainant from her husband and therefore, it is clear that the accused himself was not indebted to the complainant nor there was any legally enforceable debt existed between the complainant and accused and hence the offence under Section 138 of N.I Act is not maintainable against the accused. The liability if at all was on the part of the husband of the complainant but was not on the accused. He relied upon the decision reported in Harish Kapoor v. Akansha Gupta, Judgement dt.04.12.2008 in Crl.M.C No.3869/2007 of High Court of Delhi at New Delhi.
5. In impugnation learned counsel for 1st respondent argued that the accused is none other than own brother of the husband of the complainant and when the marital relation between the complainant and her husband was strained, they entered into a memorandum of settlement deed dated 12.07.2012 agreeing to obtain a divorce by mutual consent before a competent Court of law and it was also agreed that the husband shall pay Rs.83,00,000/- to complainant towards permanent alimony on the date of dissolution of marriage. Thereafter, the accused and the husband of the complainant have returned the jew
