APHC010330082021 IN THE HIGH COURT OF ANDHRA PRADESH ATAMARAVATI [3521]

(Special Original Jurisdiction)

MONDAY,THE NINTH DAY OF MARCH TWO THOUSAND AND TWENTY SIX PRESENT THE HONOURABLE DR JUSTICE Y. LAKSHMANA RAO CRIMINAL PETITION NO: 5432/2021 Between:

1.M/S. PRASAD M.P.H.W.(FEMALE TRAINING INSTITUTE), D.NO. 16-8-

28, 2ND CROSS ROAD, SOMAVARI STREET, KOTHAPETA, OLD GUNTUR, GUNTUR, REP. BY ITS SECRETARY CORRESPONDENT

2.D.VENKATESWARLU,, E.O., PATHURU SIVALAYAM, NARASARAOPET, GUNTUR DISTRICT ...PETITIONER/ACCUSED(S)

AND

1.M / S VENKATA RAMANA EDUCATIONAL SOCIETY, OPPICHERLA (REGD. NO. 479/2019), REP. BY ITS SECRETARY 85 CORRESPONDENT BATHULA SALINI, OPPICHERLA VILLAGE, KAREMPUDI MANDAL, GUNTUR DISTRICT

2.THE STATE OF AP, REP. BY PUBLIC PROSECUTOR, HIGH COURT, A.P.,AMARAVATI ...RESPONDENT/COMPLAINANT(S):

Counsel for the Petitioner/accused(S):

1.THOTARAMAKOTESWARARAO Counsel for the Respondent/complainant(S):

1.RAMA MOHAN RAO KOTHA

2.PUBLIC PROSECUTOR (AP) The Court made the following:

ORDER

The Criminal Petition has been filed under Section 482 of the Code of Criminal Procedure, 1973 (for brevity ‘the Cr.P.C.,’) seeking to quash proceedings against Petitioners in C.C.No.142 of 2021 on the file of the learned IAdditional Junior Civil Judge, Gurazala.

2. Heard the learned Counsel for the Petitioners, learned Assistant Public Prosecutor and the learned Counsel for Respondent No.1.

3. Admittedly, the cheque forming the substratum of the present proceedings was not issued by any of the Petitioners. The material on record unequivocally establishes that the cheque was drawn by one Yellamati Sameer Chandra. In light of this undisputed fact, the statutory liability contemplated under Section 138 of the Negotiable Instruments Act, 1881 (for brevity ‘the N.I.Act’), being penal in character and strictly circumscribed in its operation, can be fastened only upon the drawer of the cheque. The provision, by its very tenor and legislative intent, envisages prosecution solely of the person who has, in fact, issued the dishonoured cheque, and does not extend its ambit to individuals who are strangers to the execution of the cheque.

4. Learned Counsel for Respondent No.1, Sri Rama Mohan Rao Kotha, while conceding that the cheque does not emanate from any of the Petitioners, nonetheless contends that the Petitioners were signatories to an antecedent agreement executed between Respondent No.1 and certain other persons, thereby undertaking obligations flowing from the covenants embodied therein. On that premise, it is submitted that the Petitioners are also bound to honour the commitments arising under the said agreement.

5. However, such a submission cannot be countenanced in law. Be that as it may, the statutory offence embodied under Section 138 of ‘the N.I.Act’ is not attracted by the mere existence of any contractual arrangement or by the Petitioners’ association with parties to such an agreement. The penal liability under the provision is personal, specific, and non-delegable, and attaches exclusively to the drawer of the cheque. No vicarious or derivative criminal liability can be imposed upon individuals who are not authors of the cheque, regardless of their purported involvement in any underlying agreement or transaction. Consequently, the Petitioners, not being the drawers of the dishonoured cheque, fall wholly outside the purview of Section 138 of ‘the N.I.Act.’

6. In this context, learned Counsel for the Petitioners relied on the judgment of the Hon’ble Apex Court in Alka Khandu Avhad v. Amar Syamprasad Mishra, (2021) 4 SCC 675, wherein at paragraph Nos.11, 12 it is held as under:

“11. Now, so far as the case on behalf of the original complainant that the appellant herein-original Accused 2 can be convicted with the aid of Section 141 of the NI Act is concerned, the aforesaid has no substance.

12. Section 141 of the NI Act is relating to the offence by companies and it cannot be made applicable to the individuals. The learned counsel appearing on behalf of