HON’BLE SRI JUSTICE R. KANTHA RAO Criminal Petition No.5934 of 2007 Date:15.07.2010 Between: Mohd. Khursheed …Petitioners/Accused And State of A.P. rep. By P.P., Hyderabad and another …Respondents HON’BLE SRI JUSTICE R. KANTHA RAO Criminal Petition No.5934 of 2007 ORDER: This criminal petition is filed under Section 482 Cr.P.C. by the petitioner/accused to quash the entire proceedings in C.C.No.529 of 2006 on the file of the VII Additional Chief Metropolitan Magistrate at Hyderabad. I have heard the learned counsel appearing for the petitioner and the learned Public Prosecutor representing the State. The following are the brief facts necessary for consideration in the present criminal petition. The second respondent gave loan of Rs.1,50,000/- to the petitioner on two different occasions i.e. on 31.05.2002 and 30.06.2002 promising to repay the amount borrowed within one and half years, but did not keep up his promise and failed to pay the amount. Thereafter, on demand by the petitioner, he issued two cheques bearing Nos.424079 dated 26.02.2004 for Rs.1,00,000/-and 424080 dated 26.03.2004 for a sum of Rs.50,000/-. It is said that when the cheques were presented for collection, they were dishonoured with an endorsement that the account is closed. Thereafter, the first respondent filed a complaint before the XII Metropolitan Magistrate, Hyderabad and the same was forwarded by the learned Magistrate under Section 156(3) Cr.P.C. for the purpose of investigation. The Police, Madannapet registered a case in Crime No.104 of 2004 for the offences punishable under Sections 406 and 420 IPC and after completing the investigation, they filed the charge sheet alleging commission of the above mentioned offences. It is the contention of the learned counsel appearing for the petitioner that the averments of the complaint-petition basing on which the police registered the case and ultimately filed the charge sheet do not disclose that at the very beginning the petitioner had dishonest intention to cheat the first respondent to part with the amount of Rs.1,50,000/- and therefore, the offences under Sections 420 and 406 IPC are not made out and the proceedings in C.C.No.529 of 2006 therefore are liable to be quashed. I perused the complaint-petition, the charge sheet and the other material papers. As rightly contended by the learned counsel, they only indicate that the petitioner borrowed an amount of Rs.1,50,000/- from the first respondent and could not repay the same as promised and thereafter issued cheques above referred which were ultimately dishonoured. The point for determination in this criminal petition therefore is whether even if the above mentioned allegations in the complaint- petition basing on which the charge sheet is filed are believed whether they constitute the offences punishable under Sections 420 and 406 IPC. Reliance is placed by the learned counsel for the petitioner on UMA SHANKAR GOPALIKA v. STATE OF BIHAR AND ANOTHER[1] and BANSILAL SONI (DEAD) THROUGH L.Rs. v. KASTOOR CHAND BEGANI (DEAD) BY L.Rs[2]. In the decision first cited, the Hon’ble Supreme Court had categorically held that in the absence of any allegation in the complaint that at the very inception there was any intention on the part of the accused to cheat, the offences under Sections 420 and 406 IPC are not made out. Similarly, in the decision second cited, the Hon’ble Supreme Court held in categorical terms that ordinarily, bouncing of a cheque constitutes the offence under Section 138 of Negotiable Instruments Act and no complaint thereunder had been taken – In law, only because he had issued cheques which were dishonoured, the same by itself would not mean that he had cheated the complainant. Assuming that such a statement had been made, the same, in our opinion, does not exhibit that there had been any intention on the part of the appellant herein to commit an offence under Section 417 of the Indian Penal Code.” On the aforesaid reasoning, in the instant case also, at best, the allegations would attract an offence punishable under Section 138 of the Negotiable Instruments Act in respect of which a complaint has been filed. The remaining offences viz. punishable under Sections 420 and 406 IPC are not made out even if the entire allegations mentioned in the complaint petition/charge sheet are considered to be true. For the above said offences if the trial is proceeded with against the petitioner, it is nothing but abuse of process of law because as already said they do not attract the offences punishable under Sections 420 and 406 IPC. Therefore, the criminal petition succeeds. In the result, the entire proceedings in C.C.No.529 of 2006 on the file of the VII Additional Chief Metropolitan Magistrate at Hyderabad against the petitioner are hereby quashed. The criminal petition is allowed. ________________ R.KANTHA RAO,J Date:15.07.2010 ccm HON’BLE SRI JUSTICE R. KANTHA RAO Criminal Petition No.5934 of2007 Date:15.07.2010 [1] (2006) 2 SCC (Cri) 49 [2] 2007(1) Decisions Today (SC) 666