HON’BLE Dr. JUSTICE K.G.SHANKAR Criminal Petition No.7055 of 2013 Date: 15-7-2014 Between P.Murali Krishna … Petitioner/ Accused and State of A.P., Rep. by its Public Prosecutor, High Court of A.P., Hyderabad … Respondent Mukesh Keval Jail @ Mukesh Rathore … Respondent/
De facto Complainant
HON’BLE Dr. JUSTICE K.G.SHANKAR Criminal Petition No.7055 of 2013 Order:
The sole accused in C.C.No.352 of 2013 on the file of the XI Special Magistrate, Erramanzil, Hyderabad seeks for quashment of the same.
2. The 2nd respondent filed a complaint under Sections 138 and 142 of the Negotiable Instruments Act, 1881 (the N.I.Act, for short) before the XI Additional Chief Metropolitan Magistrate, Secunderabad. Without recording the sworn statement of the 2nd respondent, the case was taken on file by the learned XI Additional Chief Metropolitan Magistrate, Secunderabad. The case was subsequently renumbered as C.C.311 of 2013. It was later transferred to the Court of the XI Special Magistrate, Erramanzil, Hyderabad and was numbered as C.C.352 of 2013.
3. The 2nd respondent contended that he advanced Rs.1,20,00,000/- to the petitioner on interest at 24% p.a. He further claimed that the petitioner issued two cheques for Rs.5 lakhs each in discharge of the debt. Both the cheques bounced when presented. Consequently, the present petition is laid by the 2nd respondent.
4. The petitioner has taken three stands. First, the petitioner contended that as the sworn statement of the 2nd respondent was not recorded, the case is not maintainable. Secondly, the petitioner contended that the Trial Court did not have territorial jurisdiction to entertain the case. Thirdly, it was contended that the complaint is hit by the provisions of Telangana Money Lenders Act.
5. In Writ Petition (Civil) No.18 of 2013 (Indian Bank Association v. Union of India), the Supreme Court issued guidelines. One of the guidelines is that the Court shall scrutinize a complaint filed under Section 138 of the N.I.Act and that if the complaint is accompanied by an affidavit and a document, the Court shall take cognizance of the case if the document and the affidavit are in order. In other words, the Supreme Court held that recording the sworn statement of the complainant envisaged under Section 200 Cr.P.C is not mandatory. The contention of the learned counsel for the petitioner that taking cognizance of the case by the Trial Court without recording the sworn statement of the 2nd respondent is hit by Section 200 Cr.P.C., therefore, is not maintainable. The learned counsel for the petitioner also contended that the cheques were issued at a different place and that the present Court does not have territorial jurisdiction to entertain the complaint. However, the Supreme Court took the view that the place where the cheque was issued as well as where the cheque was presented for collection have territorial jurisdiction to entertain the dispute. Consequently, the Trial Court has jurisdiction to entertain the application. However, the learned counsel for the petitioner fairly conceded on these two aspects.
6. The learned counsel for the petitioner emphasized his 3rd contention. The transaction took place at Hyderabad which is part of Telangana. Telangana Money Lenders Act envisages that if a money lender does not hold money lender’s licence, such a money lender cannot recover the money lent by him through a suit.
The learned counsel for the petitioner contended that there was no recoverable debt in respect of which, the cheques were issued in view of the Money Lenders Act and that consequently, the complaint is not maintainable.
7. The learned counsel for the 2nd respondent contended that whether the 2nd respondent possesses such a licence and whether such a licence is necessary are questions of fact and law which cannot be considered in this petition and that such questions shall come up for consideration before the Trial Court at the time of trial.
8. Where the question whether the 2nd respondent possesses money lender’s licence or otherwise is a question of fact, I am afraid that the petitioner cannot seek for the quashment of C.C.No.352 of 2013 on the ground that there was no recoverable debt in respect of which the cheques were issued. I therefore consider that it is for the Trial Court to decide these questions.
9. Consequently, I see no merits in this criminal petition. This criminal petition accordingly is dismissed. The miscellaneous petitions, if any, pending in this petition shall stand closed.
Dr. K.G.SHANKAR, J.
15th July, 2014. Ak HON’BLE Dr. JUSTICE K.G.SHANKAR Criminal Petition No.7055 of 2013 15th July, 2014. (Ak)