HON’BLE Dr. JUSTICE K.G.SHANKAR Criminal Petition Nos.10231, 10232, 10300 and 10301 of 2013 Date: 23-6-2014 Crl.P.Nos.10231 & 10232 of 2013:
Between M/s. P.S.Corporation, Rep. by its Proprietor Mr. K.Rajendra Kumar, Office at # 14-9-15, Mukhtiyar Gunj, Siddiamber Bazar, Hyderabad The State of A.P., and … Petitioner/Accused Through Public Prosecutor, High Court of A.P., Hyderabad The Agrasen Co-op. Urban Bank Ltd., # 15-2-391/392/1, Siddiamber Bazar,Hyderabad, Rep. by its Branch Manager of Rikhab Gunj Branch, Mr. Preetam Singh … Respondent … Respondent/De facto Complainant Crl.P.Nos.10300 & 10301 of 2013:
Between M/s. Hanuman Traders, Rep. by its Proprietor Mr. K.Suresh Kumar, Office at # 15-9-15, Mukhtiyar Gunj, Siddiamber Bazar, Hyderabad The State of A.P., and … Petitioner/Accused Through Public Prosecutor, High Court of A.P., Hyderabad The Agrasen Co-op. Urban Bank Ltd., … Respondent # 15-2-391/392/1, Siddiamber Bazar,Hyderabad, Rep. by its Branch Manager of Rikhab Gunj Branch, Mr. Preetam Singh … Respondent/
De facto Complainant
HON’BLE Dr. JUSTICE K.G.SHANKAR Criminal Petition Nos.10231, 10232, 10300 and 10301 of 2013 Common Order:
The four petitions have a common thread and are consequently disposed of through this common order. Crl.P.Nos.10231 of 2013 and 10232 of 2013 are by one and the same person. He is the accused in C.C.Nos.310 of 2012 and 319 of 2012 on the file of the XII Special Magistrate, Criminal Courts, Erramanzil at Somajiguda, Hyderabad. He seeks for the quashment of C.C.Nos.310 of 2012 and 319 of 2012. Crl.P.Nos.10300 of 2013 and 10301 of 2013 are by the same person. He is the accused in C.C.Nos.321 of 2012 and 317 of 2012 on the file of the XII Special Magistrate, Criminal Courts, Erramanzil at Somajiguda, Hyderabad. The petitioner therein seeks for quashment of the two cases.
The petitioner in Crl.P.Nos.10300 of 2013 and 10301 of 2013 is the son of the petitioner in Crl.P.Nos.10231 of 2013 and 10232 of 2013.
2. It is the contention of the petitioners that the petitioner in Crl.P.Nos.10231 of 2013 and 10232 of 2013 has not executed the cheques and that the petitioner therein consequently could not be prosecuted for the offence under Section 138 of the Negotiable Instruments Act, 1881 (the N.I.Act, for short). Similar plea was taken in Crl.P.Nos.10300 of 2013 and 10301 of 2013. So far as these two petitions are concerned, copies of the cheques have not been filed to verify whether the petitioner therein has executed the cheques or otherwise.
The learned counsel for the petitioners, however, admitted that the petitioner therein has executed the cheques. The accused in C.C.Nos.321 of 2012 and 317 of 2012, by name K.Suresh Kumar was the executant of the cheques covered in Crl.P.Nos.10231 of 2013 and 10232 of 2013. The learned counsel for the petitioners submitted that K.Rajendra Kumar, who is the accused in C.C.Nos.310 of 2012 and 319 of 2012 cannot be prosecuted in the cases as he did not execute the two cheques. Admittedly, K.Suresh Kumar executed the cheques in C.C.Nos.310 of 2012 and 319 of 2012, which are criminal cases against K.Rajendra Kumar.
The general law is that a case under Section 138 of the N.I.Act is maintainable against a person who issued the cheque; so much so, the complaints in C.C.Nos.310 of 2012 and 319 of 2012 are sought to be quashed where the accused admittedly did not issue the cheques.
3. The learned counsel for the 2nd respondent-
The Agrasen Co-operative Urban Bank Limited, Siddiamber Bazar, Hyderabad, who is the payee in the four cheques, on the other hand, contended that the father Rajendra Kumar executed General Power of Attorney in favour of his son Suresh Kumar and that Suresh Kumar issued the cheques on behalf of his father Rajendra Kumar. He further submitted that the question whether the son can issue a cheque on behalf of the father and whether the father would be bound by such a cheque is a question of law which can be decided at the time of the disposal of the criminal case.
4. The learned counsel for the petitioners/accused, on the other hand, contended that the two cheques in C.C.Nos.310 of 2012 and 319 of 2012 were issued on behalf of Perika Corporation by the son Suresh Kumar as the Proprietor/Manager. Admittedly, the father is the Proprietor of M/s. P.S.Corporation. The cheques in C.C.Nos.310 of 2012 and 319 of 2012 do not show that they were issued by K.Suresh Kumar on behalf of his father or that they were issued on behalf of M/s. P.S.Corporation. It is the contention of the learned counsel for the petitioners/accused that where the very cheques were issued by Suresh Kumar on behalf of Perika Corporation, father Rajendra Kumar could not be prosecuted in C.C.Nos.310 of 2012 and 319 of 2012 for the offence under Section 138 of the N.I.Act.
5. The learned counsel for the Co-operative Bank (the 2nd respondent), however, submitted that whether the cheques issued by the agent bind the principal and whether the principle enumerated in Section 141 of the N.I.Act binding persons connected with the company liable when the cheque was issued on behalf of the company, applies to the case of father and son in a Hindu Undivided Family are questions of law which can be decided at the time of the trial of the cases to decide about the liability of Rajendra Kumar.
6. The case of the Co-operative Bank is that K.Rajendra Kumar, father, is the Proprietor of M/s. P.S.Corporation whereas K.Suresh Kumar, son, is the Proprietor of M/s. Hanuman Traders. He further contended that the father and son have been obtaining loans from the Co-operative Bank since 1999 and that on 05-01-2012, the father and son borrowed Rs.1,30,00,000/- on each of the accounts, on the foot of mortgages. Monthly instalment was at Rs.2,52,500/- payable for 84 months. He further submitted that the father Rajendra Kumar executed a General Power of Attorney in favour of the son Suresh Kumar and that the General Power of Attorney is in force. His claim is that the cheques were issued under the mandate of the General Power of Attorney by the son as the agent of the father. He also submitted that the father and son stood as guarantor for each other’s debts.
7. The learned counsel for the petitioners/accused submitted that the son was given Special Power of Attorney but not General Power of Attorney. At any rate, the admitted facts are that the petitioner in Crl.P.Nos.10231 of 2013 and 10232 of 2013 is the father and the petitioner in Crl.P.Nos.10300 of 2013 and 10301 of 2013 is the son and that the 2nd respondent claimed that cheques were issued by the son on behalf of the father. That the cheques bounced when presented is evident. Therefore, a question arises as to the liability of the father and the son.
8. Defence is set up by the father that he is not liable where the son executed the cheques. I do not consider that the petitioners cannot approbate and reprobate at one and the same time, contending in one breadth that the son is not liable as he did not owe monies to the 2nd respondent/Co-operative Bank and contending at the same time that as the cheques were issued by the son, the father is not liable.
9. The case thus raises concrete questions of law as well as questions of fact, viz., initial liability of the petitioners. I consider that such questions can be answered at the time of trial before competent Criminal Court but not in petitions for the quashment of the cases.
10. I therefore see no grounds to interfere with the prosecution of the father and son by the learned XII Special Magistrate, Criminal Courts, Erramanzil at Somajiguda, Hyderabad. These criminal petitions, accordingly, are dismissed. The miscellaneous petitions, if any, pending in these petitions shall stand closed.
Dr. K.G.SHANKAR, J.
23rd June, 2014. Ak HON’BLE Dr. JUSTICE K.G.SHANKAR Criminal Petition Nos.10231, 10232, 10300 and 10301 of 2013 (Common Order) 23rd June, 2014. (Ak)