Andhra Pradesh High Court - AmravatiUdamala Harshavardhan vs Sykam Satyanarayana Vara Prasad on 29 March, 2022Bench: K Sreenivasa ReddyTHE HON'BLE SRI JUSTICE K.SREENIVASA REDDY\n\n              CRIMINAL PETITION No.5505 of 2018\n\nORDER:-\n\n        This Criminal Petition, underSection 482of the Code of\n\nCriminal Procedure, 1973, is filed to quash the proceedings in\n\nC.C.No.247 of 2017 on the file of the I Additional Judicial\n\nFirst Class Magistrate Court at Nuzvid, Krishna District,\n\nregistered for the offence punishable underSection 138of the\n\nNegotiable Instruments Act, 1881 (for short 'theN.I. Act'). The\n\npetitioner herein is A3 in the said Calendar Case.\n\n        2. The 1st respondent herein/complainant filed acomplaint against the petitioner and two others for the\n\noffence punishable underSection 138of the N.I. Act. The\n\nallegations, in brief, in the said complaint may be stated as\n\nfollows;A1 is a partnership firm, A2 is its Managing Partner and\n\nthe petitioner/A3 is its partner. The complainant offered to\n\nsell his residential house bearing No.32/36-2 situated in\n\nMachilipatnam, Krishna District and his sisters came forward\n\nto     purchase      the   same    for   a   sale    consideration    of\n\nRs.20,00,000/- (Rupees Twenty Lakhs only) and accordingly\n\nan agreement of sale, dated 06.10.2015, was entered into\n\nbetween them and he received Rs.6,00,000/- advance money\n\non that day; Rs.5,00,000/- on 17.12.2015 and Rs.4,00,000/-\n\non 20.05.2016. It is further alleged that on coming to know\n\nthat     A1   firm     developed    a    house      plots   project   in2Kotappakonda,            Guntur        District      under       the     name\n\n'Kotappakonda Paradise' and was selling the house plots in\n\nthe said project, 1st respondent/complainant contacted A2.\n\nOn 18.10.2015,           A2 and the petitioner/A3 came to the\n\nhouse of 1st respondent/complainant, represented themselves\n\nas Managing Partner, and Partner, respectively of A1 firm and\n\nthat the said project has got good potentiality and there was\n\nevery possibility of increasing the prices within a short span\n\nof time and that A1 firm got clear title in respect of the land\n\ncovered under the said project and they would execute and\n\nregister sale deed in favour of the complainant without any\n\ndelay after receiving the total sale consideration and handover\n\nthe plots by planting red sandal wood trees in the said plots.\n\nIt     is      further      alleged     that       believing     the     same\n\n1st respondent/complainant agreed to purchase 762 square\n\nyards of land covered under Plots Nos.71, 72 and 51 in the\n\nsaid        project   and    sale      consideration     was      settled     at\n\nRs.28,57,500/-,          and      in     pursuance        of     same,      the\n\n1st    respondent/complainant               paid   the   total    part      sale\n\nconsideration of Rs.14,68,000/- in instalments to A2 and A3,\n\nrepresenting A1.It is further alleged that in the month of March, 2017,\n\nwhen 1st respondent/complainant expressed his readiness\n\nand willingness to pay the balance sale consideration and\n\ndemanded A2 and the petitioner/A3 for registration of the\n\nsaid plots, A2 and the petitioner/A3 stated that as A1 firm\n\nhad no title over the subject property, they cannot register the3plots in the name of the 1st respondent/complainant;\n\nthereupon 1st respondent/complainant demanded for return\n\nof the total amount already paid along with interest and also\n\nRs.5,00,000/- towards damages and compensation, after\n\nnegotiations,         A2   and    the    petitioner/A3 agreed to pay\n\nRs.20,12,000/- to 1st respondent/complainant towards full\n\nand final settlement.It     is        further    alleged      that   A2    negotiated    1st\n\nrespondent/complainant              to       purchase     an    open    plot\n\nadmeasuring 429 square yards situated in Balliparru village\n\nbelonging        to     one      M.Vijay      Kumar       and   accordingly\n\n1st respondent/complainant agreed to purchase the said plot\n\nfor sale consideration of Rs.6,44,000/- and A2 promised to\n\narrange Rs.5,44,000/- out of the said sale price and asked\n\n1st respondent/complainant to arrange balance amount of\n\nRs.1,00,000/- at the time of registration; that accordingly a\n\nsale deed, dated 06.04.2017 was executed in favour of wife of\n\n1st respondent/complainant in respect of the said plot and A2\n\nissued a cheque bearing No.915911 drawn on Indusind Bank,\n\nBenz Circle Branch, Vijayawada for Rs.6,44,000/- in favour of\n\nsaid vendor Vijay Kumar towards sale consideration amount,\n\nbut, subsequently, when the said cheque was presented, it\n\nwas returned with endorsement 'insufficient funds'.It is further alleged as per the instructions of A2, the\n\n1st respondent/complainant presented the cheque bearing\n\nNo.915909 on 15.06.2017 for collection in Vijaya Bank,\n\nNuzividu Branch, but the said cheque was returned with4endorsement 'drawers signature differs' and the same was\n\nintimated vide cheque return memo dated 19.6.2017 issued\n\nby Indusind Bank, Benz Circle Branch, Vijayawada. After\n\nissuing statutory notice underSection 138(b) of N.I.Act dated\n\n11.7.2017, the present complaint came to be filed by the\n\n1st respondent/complainant.3. Heard the learned counsel for the petitioner and the\n\nlearned counsel for the 1st respondent.4. Learned counsel for the petitioner contended that\n\nthat the petitioner/A3 is no way concerned with the subject\n\ntransaction and also with the day to day affairs of A1 firm;\n\npetitioner is not a signatory to the dishonoured cheque and\n\nthat the entire allegations in the complaint are against A1\n\nfirm and A2 only; even according to the averments of the\n\ncomplaint      there    is     a   dispute      between     the    1st\n\nrespondent/complainant and A2 and A3; except omnibus\n\naccusations, no specific allegations are leveled against the\n\npetitioner/A3     and     hence        continuation   of    impugned\n\nproceedings against the petitioner is nothing but abuse of\n\nprocess of law and subjects the petitioner to great hardship.5.   On    the    other   hand,     learned counsel     for   the\n\n1st respondent, submits that the petitioner/A3 is the partner\n\nof A1 firm and there are allegations against A2 and the\n\npetitioner/A3           that           they       induced          the\n\n1st respondent/complainant to purchase a plot in the project\n\nlaunched by A1 firm by name 'Kotappakonda Paradise'\n\nthough A1 firm had no title over the land covered by said5project,           and      collected        huge        sum         from\n\n1st    respondent/complainant           in   several   instalments       as\n\nenumerated in the complaint and failed to execute registered\n\nsale-deed and towards discharge of the said debt, that A2\n\nrepresenting A1 and also the petitioner/A3 gave the subject\n\ncheque       to     1st    respondent/complainant,           which      was\n\ndishonoured on presentation of the said cheque. It is his\n\nfurther submission that there are specific allegations against\n\nthe petitioner/A3, attracting the offence alleged and it is too\n\npremature stage for interference of this Court.6. This Court perused the Court.7. A perusal of the complaint reveals that there are\n\nspecific allegations that A2 is the Managing Partner of A1 firm\n\nand the petitioner/A3 is its partner and that both A2 and A3\n\nrepresented that A1 firm launched a project by name\n\n'Kotappakonda Paradise' and was selling house plots and A1\n\ngot clear title in respect of plots covered under the said\n\nproject. It is alleged that A2 and the petitioner/A3 further\n\nrepresented that they would execute registered sale-deed in\n\nfavour of 1st respondent/complainant without any delay and\n\nhand over the plots by planting red sandal wood trees in the\n\nsaid       plots     and     believing       the    same,      the       1st\n\nrespondent/complainant agreed to purchase 762 square\n\nyards of land covered under Plots No.71, 72 and 51 in the\n\nsaid    project      and    sale   consideration       was    settled    at\n\nRs.28,57,500/-. It is further alleged that pursuant to the said\n\noral terms agreed between the parties, he paid total part sale6consideration of Rs.14,68,000/- in instalments to A2 and the\n\npetitioner/A3, representing A1 firm. It is further alleged that\n\nwhen subsequently, 1st respondent/complainant approached\n\nA2 and the petitioner/A3 with balance sale consideration and\n\nrequested to execute registered sale-deed, A2 and the\n\npetitioner/A3 stated that A1 firm had no title over the subject\n\nproperty and they cannot register the plots in the name of 1st\n\nrespondent/complainant. Thereafter the parties arrived at\n\nsettlement for return of money and pursuant to the same, the\n\nsubject   cheque    was    issued     in   the   name    of   1st\n\nrespondent/complainant, and when the same was presented,\n\nit was dishonoured with endorsement ''drawers signature\n\ndiffers'. After issuing the statutory notice underSection 138(b) of N.I.Act, as the amount covered under the subject\n\ncheque was not paid by A2 and the petitioner/A3, the present\n\ncomplaint was lodged.8.     There    are   specific   allegations   against   the\n\npetitioner/A3 also that he is the partner of A1 firm and\n\nactively involved himself in the subject transaction with 1 st\n\nrespondent/complainant. Truth or otherwise of the said\n\nallegations has to be established during the course of trial.\n\nThis Court underSection 482Cr.P.C. would not be in a\n\nposition to appreciate the facts by adopting roving enquiry.\n\nTherefore, it is premature stage, where this Court can\n\ninterfere exercising the inherent jurisdiction underSection\n\n482Cr.P.C. The Criminal Petition is devoid of merits.79. At this stage, learned counsel for the petitioner\n\nsubmits that presence of the petitioner may be dispensed\n\nwith before the trial Court. Considering the submission made\n\nby the learned counsel for the petitioner, the presence of\n\npetitioner before the trial Court is dispensed with. However,\n\nthe petitioner/accused shall appear before the trial Court\n\nwhenever the learned Magistrate specifically directs for his\n\nappearance.10. With the above observation, the Criminal Petition is\n\ndisposed of. Miscellaneous petitions, if any pending, in the\n\nCriminal Petition, shall stand closed.___________________________________\n                           JUSTICE K. SREENIVASA REDDY\nDate: 29.03.2022\nSSP/DRK/GR