THE HONOURABLE SRI JUSTICE A.GOPAL REDDY Crl.P.Nos.6164/2007 & 6865/2008 Dt.7-10-2010 Crl.P.Nos.6164/2007 1. G. Shyam Kumar and another ..Petitioners V. 1. Danda Koti Reddy and others ..Respondents The Court made the following: THE HONOURABLE SRI JUSTICE A.GOPAL REDDY Crl.P.Nos.6164/2007 & 6865/2008 ORAL ORDER Since the criminal petitions are inter-connected between the parties, they are being heard together and disposed of by this common order. The sixth respondent in Crl.P.No.6164/2007 is the defacto complainant who filed a complaint under Sections 190 and 200 r/w 156(3) Cr.P.C., for the offences punishable under Sections 381, 408, 420, 468 and 467 IPC against 7 accused persons before the Court of IV Additional Munsif Magistrate, Guntur, in which petitioners in Crl.P.No.6164/2007 are arrayed as A-6 and A-7 and respondents 1 to 5 in Crl.P.No.6164/2007 are arrayed as A-1 to A-5. On filing the said complaint, the learned Magistrate referred the same to the Station House Officer, Lalapet Law and Order Police Station, Guntur under Sec. 156(3) Cr.P.C., for investigation and report. On the basis of which, police registered a Cr.No.73/2006 under Sections 408, 420,467 and 468 IPC and Sec. 156(3) Cr.P.C., The police after due investigation, laid a charge sheet before the IV Additional Munsif Magistrate, Guntur and the same was numbered as CC No.323/2007. The charge sheet discloses that the defacto-complainant is running chillies business in the name and style of M/s. Gopalakrishna Traders Chillies Commission Merchants, Guntur. A-1 and A-2 were appointed as Clerks along with K. Koti Reddy to look after the business. The defacto complainant noticed that A-1 misappropriated an amount of Rs.1,00,000/- and suspended him and asked A-2 to look after the business transactions. In the process, the defacto complainant used to deliver blank cheques to the ryots through A-2 whenever she purchased chillies from them. Taking advantage of the singed blank cheques, A-2 retained some of the signed blank cheques with mala fide intention and misrepresented the defacto complainant by concealing them in a iron safe without giving to the ryots. On 11-3-2003 J. Veera Reddy went to the office and found A-1, A-2 and Koti Reddy witnessing TV and after sometime Veera Reddy went to home. At about 3-45 PM, A-2 and Koti Reddy telephoned to the defacto complainant and informed her that A-1 took away the cheques, day books, receipt books etc., The defacto complainant after coming to know about the misbehaviour of the accused, verified the signed blank cheques handed over to A-2 and noticed that some of the cheques were not presented for collection. A-4 and A-5, who are the wife and husband, are running the chillies export business in the name and style of M/s. Sriram Exports (A-3). They purchased chillies from the defacto complainant for Rs.6 lakhs on credit basis and when they failed to pay the same, the defacto complainant filed DLSA No.32/2004 before the District Legal Services Authority, Guntur. The said matter was compromised by passing an award. As per the terms of the compromise, A- 3 to A-5 agreed to pay Rs.5,50,000/- on or before 30-4-2004. Since A-3 and A-5 did not pay the amount, the defacto complainant filed EP No.96/2004 in DLSA No.32/2004 on the file of III Additional District Judge, Guntur, in which property of A-4 was attached. Meanwhile, A-1 and A-2 handed over the blank cheques and letters heads containing the signatures of the defacto complainant to A-4 and A-5 with mala fide intention. Thereafter, the defacto complainant received a legal notice from A-6 and A-7 alleging that they supplied chillies worth Rs.6 lakhs to the defacto complainant and asked her to pay the said amount. When the defacto complainant failed to pay the amount, they presented the cheque for collection, which was dishonoured. The charge sheet would further disclose that basing on the statements recorded, the investigating officer opined that A-1 to A-7 are liable for punishment under Sections 408 and 420 IPC. It is not in dispute, the petitioners in Crl.P.No.6164/2007 earlier filed Crl.P (SR) No.20766/2007 to quash the proceedings initiated against them in Cr.No.73/2006 of Lalapet Police Station, Guntur and the same was dismissed as withdrawn on 23-10-2007. The first petitioner in Crl.P.No.6164/2007 (who is first respondent in Crl.P.No.6568/2008) issued a notice dt. 28-2-2006 to the defacto-complainant (6th respondent) in Crl.P.No.6164/2007 for dishonour of cheque dt.22-12-2005, as contemplated under Sec. 138 of the Negotiable Instruments Act, stating that cheque dt. 22-12-2005 issued by her has been dishonoured. The said notice was received by the defacto complainant in Crl.P.No.6164/2007 on 7-3-2006. Later A-6 in Cr.No.73/2006 (first petitioner in Crl.P.No.6164/2007) filed a complaint under Sections 138 and 142 of the Negotiable Instruments Act and Sec.420 IPC against the defacto-complainant (6th respondent) in Cr.P.No.6164/2007 in CC No.512/2008 and it is pending on the file of III Additional Chief Metropolitan Magistrate, Visakhapatnam. To quash the said proceedings initiated against the sole accused in CC No.512/2008, she filed Crl.P.No.6865/2008. Sri G. Ram Gopal, learned counsel for the petitioners/A-6 and A-7 in Crl.P.No.6164/2007 contends that the complaint do not indicate that they committed any criminal breach of trust under Sec. 408 IPC, and the petitioners have not cheated or deceived the defacto complainant for delivery of cheques and induced her, to attract Sec.420 IPC, and therefore, the proceedings initiated against them are liable to be quashed. Whereas, Sri T.Bali Reddy, learned senior counsel appearing for the petitioner in Crl.P.No.6865/2008 and R-1 in Crl.P.No.6164/2007 would contend that the result of CC No.512/2008 depends upon the result in CC No.323/2007, and therefore, both the cases may be heard together to avoid conflicting judgments. As per the contents of the charge sheet, it is clear A-6 and A- 7 supplied chillies to the defacto complainant and issued a notice to her on dishonour of cheque issued by her. On dishonour, proceedings in CC No.512/2008 were initiated. Whether A-6 and A-6 cheated the complainant for the alleged supply of chillies and committed an offence under Sec. 420 IPC or not is a matter requires to be decided basing upon the evidence to be adduced by the defacto complainant in CC No.323/2007, but they cannot be proceeded for the offence under Sec. 408 IPC. Further, the petitioners, having earlier filed petition to quash the crime and withdrawn the same and again filed the present petition without reserving their right to file quash petition on filing charge sheet, cannot maintain the present petition for the very same relief. Suffice, police have filed the charge sheet and it was numbered as CC No.323/2007. In view of the same, the cause in Crl.P.No.6164/2007 has become infructuous. But necessary amendment has not been made to quash the proceedings initiated in CC No.323/2007. Further, the complainant has to be given an opportunity to produce evidence to prove the offence under Sec. 420 IPC against the accused in CC No.323/2007. Therefore, this court did not find any reason to quash the proceedings at this stage. Crl.P.No.6164/2007 is accordingly dismissed. The petitioner in Crl.P.No.6568/2008 has not denied the signature on the cheque petition. Whether the accused in CC No.512/2008 (who is the defacto complainant in CC No.323/2007) is entitled to draw a presumption or not has to be decided on the basis of the evidence to be adduced by the defacto complainant. Therefore, this court did not find any merit to quash the proceedings in CC No.512/2008. Crl.P.No.6865/2008 is accordingly dismissed. Since the other allegation in CC No.323/2007 pertain to misappropriation by A-1 and A-2 according to the defacto-complainant, this court is of the view that CC No.512/2008 pending on the file of III Additional Chief Metropolitan Magistrate, Visakhapatnam should be tried along with CC No.323/2007. Accordingly, CC No.512/2008 pending on the file of III Additional Chief Metropolitan Magistrate, Visakhaptnam is withdrawn and transferred to the Court IV Additional Munisf Magistrate, Guntur to be tried along with CC No.323/2007 pending on its file. ______________ A.GOPAL REDDY,J Dt.7-10-2010 kmr