HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO CRIMINAL PETITION Nos.8482 OF 2010 AND 9211 OF 2010 COMMON ORDER: These are the applications filed under Section 482 of the Criminal Procedure Code by the petitioners, who are accused 1 and 2 in C.C.No.493 of 2010 on the file of the Special Judicial Magistrate of I Class (Excise), Visakhapatnam, to quash the proceedings with regard to the complaint under Section 138 of the Negotiable Instruments Act. The 1st accused is the petitioner in Criminal Petition No.9211 of 2010 and the 2nd accused is the petitioner in Criminal Petition No.8482 of 2010. 2. The case of the complainant is that the 1st accused was the Correspondent and Secretary of Haritha Ecological Institute of Learning from Environment, which is located at Paloncha of Khammam District and as the College was not properly managed, the 2nd accused was said to have been taken as Principal with an understanding that he would develop it by using his own financial resources. For that purpose, a sum of Rs.6,00,000/- is said to have been borrowed and a cheque for a sum of Rs.5,00,000/- was issued by the 2nd accused on 08.06.2009 in his capacity as a Principal of Haritha Junior College. There are also allegations in the complaint in para No.’c’ to the effect that there was some talks of compromise and a sum of Rs.1,00,000/- was paid and subsequently, a sum of Rs.5,00,000/- was agreed to be paid and on 08.06.2009 the 2nd accused issued the cheque for Rs.5,00,000/-, which was the disputed cheque. The cheque was presented and it was dishonoured. The notice is said to have been sent to a place where, according to the 2nd accused, he was not at all a resident at any point of time and it was returned. 3. The contention of the petitioners is that the complaint is not maintainable. So far as the 2nd accused is concerned, it is his contention that the notice was not properly served and it was sent to an address where he never resided and therefore, the prosecution is bad. Evidently, whether the said notice was sent to a proper address or an improper address and whether it was sent knowingly or unknowingly, is a fact, which has to be proved during the trial. The fact that notice has been sent and it was returned is not in dispute. Therefore, in view of the above circumstances, in these proceedings, the contention of the 2nd accused cannot be taken into consideration and the failure of proper notice can only be agitated during the trial of the case. 4. So far as the 1st accused is concerned, it is her contention that she was not at all associated with the issuance of the cheque and therefore, she is not liable. But, however, the prima facie allegations in the complaint go to show that she was the Correspondent and Secretary of Haritha Junior College, which fact she has not denied and the effort of the 2nd accused for borrowing and developing the college is evidently for the benefit of the 1st accused and whether there is any enforceable liability against her or not can only be considered after taking the evidence of the complainant and assessing the evidence as to whether there was a consent for borrowing amounts from the complainant. As matter stands thus, the decision relied on by the learned counsel for the 1st accused reported in P.J.Agro Tech Ltd. V. Water Base Ltd[1] has no application since it was a case after taking of the evidence and final trial, the judgment was delivered. This being proceedings under Section 482 of the Criminal Procedure Code except looking into the complaint and its contents, it is very difficult to come to opinion about the maintainability or otherwise of the liability against the 1st accused. 5. Therefore, without prejudice to the contentions of both the petitioners, which were raised the legal pleas or factual aspects, the petitions are dismissed. The lower Court is directed to dispose of the case within six months. The appearance of the 1st accused is dispensed with and she is permitted to be represented by an Advocate and no claim for prejudice of trial in the absence shall be raised at any time in future by the 1st accused. The absence of the 2nd accused for any sufficient and reasonable causes shall be considered by the lower Court on the date of hearing. _________________________ N.R.L. NAGESWARA RAO, J Date:29.07.2011 INL [1] AIR 2010 SC 2596