LAKSHMI PRABHAKAR Vs. SATYA VENKATA SRINIVASA

JUDGEMENT

(1.) THIS Criminal Petition has been taken out under Section 482 Cr.P.C. by accused Lakshmi Prabhakar in C.C.No.164 of 2012 on the file of III Special Magistrate, at Hasthinapuram, Ranga Reddy District to quash the proceeding therein.

(2.) THE 1st respondent is the complainant in C.C.No.164 of 2012. It is the case of the complainant that he was one of the Directors of M/s.Vision Heights Limited (VHL) from July 2009 to 14 11 2011. He shouldered the responsibilities as Secretary and Correspondent of M/s. Vision Education Society (VES) at Rajahmundry till 14 11 2011. His wife Smt. Indira Priyadarsini served as member of M/s. Vision Education Society as well as the Director of the school maintained by the said society till 14 11 2011. He and his wife resigned from their respective positions on 14 11 2011 and settled their claim in regard to their share application money, salaries, consultancy fees and severance fee etcetera pertaining to M/s. Vision Ventures Limited, Vision Heights Ltd and Vision Education Society for a total sum of Rs.1.75 Crores as per the terms and conditions specified and arrived at by them on 14 11 2011 under an Agreement dated 14 11 2011. He and his wife stood as guarantors to the loan raised by VES Project from Bank of Baroda, Hukumpet Branch and mortgaged their personal properties. The petitioner assured him (complainant) and his wife that he would get the personal guarantees and securities released within a period of three months. M/s. Vision Heights Limited further agreed that personal guarantee provided by the complainant to United Bank of India, Hyderabad Branch for the execution of VHL Project at Rajahmundry be released within three months from the date of signing of the said Agreement by replacing the same with such suitable personal guarantees as may be required by the concerned Bank. Release of the mortgaged properties and the personal guarantees of him and his wife from both the Banks was one of the conditions of the settlement arrived at under the Agreement dated 14 11 2011. Vision Ventures Limited, the sister concern of VHL represented by the petitioner as Managing Director issued two cheques bearing Nos.2028 and 2029 in his favour drawn on Axis Bank Limited, Banjara Hills Branch for Rs.30,00,000/ each. The petitioner specifically requested him to present the said two cheques for encashment in the event of his failure to get release of the personal guarantees and the collateral securities given by him and his wife towards partial discharge of the liability. He accepted the said two cheques believing that the petitioner would do the needful in the meanwhile without necessitating his presenting the cheques for payment. Even after a lapse of said three months period stipulated in the agreement dated 14 11 2011, the petitioner failed to fulfill his promise of releasing the guarantees and securities given to the said two Banks by him and his wife. After waiting for further period of two months from the date of the cheques, he presented the cheques as they are likely to be time barred. On presentation of the cheques through his Banker Andhra Bank, Kothapet Branch on 02 5 2012, both the cheques came to be dishonoured for the reason "Account Closed ". He approached the petitioner and demanded payment of the amount covered under the cheques. There being no positive response, he issued a statutory notice calling upon the petitioner to make good the amount covered under the cheques in question. The petitioner gave a reply denying his liability. Thereupon, he issued a rejoinder to the reply notice. Despite notice and rejoinder notice, the petitioner did not choose to pay the amount covered under the cheques in question. Hence, he filed complaint in the Court of Judicial First Class Magistrate, Special Mobile Court, Ranga Reddy District. The learned Magistrate took the compliant on file as C.C.824 of 2012. Subsequently the case came to be transferred to the file of III Special Magistrate, Hasthinapuram, L.B.Nagar, R.R.District and re registered as C.C.No.164 of 2012. Hence this Criminal Petition by the accused in C.C.No.164 of 2012 on the file of III Special Magistrate, Hasthinapuram, Ranga Reddy District to quash the proceeding therein.

(3.) IT is contended by the learned senior counsel Sri D.Prakash Reddy for the petitioner that as on the date of issuance of cheques, there was no amount due to the 1st respondent/ complainant and therefore, it could not be said that the cheques in question were issued towards discharge of the debt or liability, much less legally enforceable debt or liability. He would contend that on the date of issuance of cheques, no amount was crystallized, which the petitioner was required to pay. Even otherwise, the complaint averments indicate that the cheques were given to the 1st respondent/complainant as a security for due performance of getting the personal guarantees and securities of the 1st respondent/complainant released from the two Banks. Mere failure to fulfill the promise of getting the personal guarantees and properties released from the Banks cannot be construed as a debt or liability, as provided in Section 138 of the Negotiable Instruments Act, 1881 (N.I.Act). The complaint averments are sufficient to infer that there was no debt, which the petitioner was required to pay as on the date of the issuance of the two cheques. In support of his contentions, reliance has been placed on the judgment of this Court in Suresh Agarwal v. State of Andhra Pradesh (2012(2) ALD (Crl.) 302 (AP), Krishna Janardhan Bhat v. Dattatraya G.Hegde (AIR 2008 SUPREME COURT 1325).