Karnataka High Court
M/S. Duo Properties Pvt Ltd vs Mr P Dayananda Pai on 30 November, 2010
Author: C.R.Kumaraswamy
Bench: C.R.Kumaraswamy
IN THE HIGH COURT OF KIKRNATAKA, BANGALORE
DATED THIS THE 30?" DAY OF NOVEMBER 2010
BEFORE
THE HON'BLE MRJUSTICE C R KUMARASWAMY
CRIMENAL PETITION NO.4902/2018
BETWEEN:
1 M/S DUO PROPERTIES PVT. LTD.
A COMPANY REGISTERE UNDER
COMPANIES ACT, _ v
HAVING ITS REGISTERED OFFICE AT. NO_'.'28,
ULSOOR ROAD, BANGALORE 42 '
REP. BY ITS DIRECTORS ' '
MR. T.PHANI MAHESH
MR. A.M.SHARATH CHANDRA.
2 SR1T~'PHANI,MAHEESH ' _
S/O SRI T C A'S'H\!VA'RTH..Nf-RAYAN
AGED";AEO,uT' 4,5':/,'E-.ARS, "
DIRCTOR ' _ '~ I
M/S DUO PROPERTIES (P.),..'LTD.,
NO;23_.,uLSOOR'ROAD',
BANGALORE 42".'-I ..... .. .
» MR A..,AM~..Si¥!OARATH CHANDRA
"S,/OEAA,jc,M»LINVIv'ENT<:ATE GOWDA
~.AG__ED A«3OI_JT;,4'9 YEARS,
D,IRCTOR* *
M/S DUO PROPERTIES (P) LTD.,
NO.2~8,";LlLSOOR ROAD,
' .. BANGALORE 42. PETITIONERS
4(aY--T.S'RI...T"RAvI B. NAIK, SENIOR COUNSEL FOR M/S. A K S
_AS'SO'CIATES, ADVOCATES)
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AND:
MR P. DAYANANDA PAI
S/O LATE P NARASIMHA PAI
AGED ABOUT 64 YEARS,
NO.10/1, LAKSHMINARAYANA
COMPLEX, GROUND FLOOR
PALACE ROAD,
BANGALORE 52. RESPONDENT
(BY M/S. S MAHESH & COMPANY, ADVOCATES)
CRL.P FILED U/S.482 OF CR.P.C BY THE AOVOVCATE FOR THE»
PETITIONERS PRAYING THAT THIS Ho_;xya,L,E COuRTi,_';MA*Yf.BEvi.,
PLEASED To QUASH THE ENTIRE EP.oCEEoIi_\i'Os., "IN
C.C.NO.27090/O9 PENDING ON THE i'-"I7i__E :OF..*'THE_ -.><\'i Ai':'P4M*_,ij_'
BANGALORE. _ ._ ._ , '
THIS CRLP IS COMING ON FO£?.°AiZ)MISSI,Oi=i ,TlH.Is'zOA.v, THE
COURT MADE THE FOLLOWING:
ieEoEiAi,,
Thisi:Cri_m_ilina'l_--i,P,éti,tio4nV"'~«i.s filed under Section 482 of
Cr.P.C. by the {earned the petitioners praying to
quash the entireuprooeedingsvin C.C. No. 27090/2009 pending
:'V'0nati'ieé?:fi"ie dim} ~Aadi.CidM, Bangalore.
"'1:"'i_Ia_ve,;'i%'§'eard learned Counsel for the petitioners
as well as le.arried Counsei for the respondent.
E * The primary facts of the case is as under:
I lVIr.P Dayananda Pai has presented a Complaint
'before the XV Acidl. Chief Metropolitan Magistrate, Bangalore.
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The accused has issued a cheque bearing No. 197999 dated
26.03.2009, drawn on The Dhanalakshmi Bank Ltd,_,
M.G.Road Branch, M.G.Road, Bangalore, for a
Rs.2,00,00,000/-- (Rupees Two Crore Only). The melee A'
was presented for encashment aridm"t'h.e was
dishonoured on the ground of "insufficientlfunds".
legal notice was issued on 29.08;'2i§G9. V.In--l._sp.it_e ieriiiiegei
notice, the accused failed to th.e"an'ioi:n"tera'nd the'reb§ they
have alleged to have committed'Aani','oiFen;:e'--;j'§,rji'shable under
Sections 138 and 1;-*i1"ofI'Negotiabll~e Act, 1881.
4. It er,:::svri:',iRevi B Naik, learned
Senior Counse|«.aprieai"i'ng'o,n"h'e'vh_alf-'of the petitioners that the
order sheet dated not been signed by the
vlearned CMiVi,l--V..V8Va'ng::alore. He further submits that
cogniglancge the learned Magistrate is without
vappli'cati.o.n The cheque has not been presented
within rnonths from the date of handing over of the cheque
toithe ciorgnpvlwainant. The attention of this Court was invited to
_S--ectiAo§ni'1"i38(a) of the Negotiable Instruments Act.
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5. Learned Counsel for the respondent relies on the
ruling in the case of Surendra Singh and Others Vs State of
Uttar Pradesh reported in AIR 1954 sc 194, whevrueaiTn"»sat
para 14 of the said ruling reads as under: it it
"1-4. As soon as the judgment is de!.ivAe':i~*ed:}.l.::: _
that becomes the operative pronoun'ceme«nt -of.lt_he_V
Court. The law then ilirovides he t'hei"mer.n9érin -
which it is to be authentica't_ed._.and'made
The rules regarding this ditfevr_V'»%'buVt thefiwlido not
form the essence o.f'fth_e ifh'a'tt'e--rj¢ if there"is
irregularity in carrying curable.
Thus, if a judgment h.a'p'pens'hot,_to'.'be:s'ig'ned and
is inadvertently'igacted{on 4_'and""e-xecuted, the
proceded'iln'gs.:{5. would be valid
becauuse"t'he can be shown to have
been va'i~icd4it~;_die!i\}'egred;'_.ini'ould stand good despite
defects. in the lvmode of its subsequent
a'u.thentication."'" """
He «lals4o--«..fel.ifes--v"on another ruling in the case of Ashok
Vvtieshwant Badjave Vs Surendra Madhavrao Nighojakar
ehetherfireported in (2001) 3 scc 726, in Head Notes
Ajand! 'E5,"it is held that:
"A. Six months' period has to be
calculated for purpose of proviso (a) from the
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date mentioned on the face of cheque and not
from any earlier date when drawer actually gave
cheque to drawee ~-- High Court rightly dismissed
appellant-drawer's appeal against issue of process
against him -- Words and Phrases -- "post dated
cheque".
8. Post dated cheque, remains a
exchange till the date written on;»t»he,fac'ej~
on that date it becomes a cheque»,
And it is further held
"For prosecuting._a pe'rsonffo'r._.an "o'ffen«ce
under Section 138 of"tl"ie-.E\ie.gi§ti.a|5ie'jInstruments
Act it is inevitable that...th'ej~cheq<.ie'is.pres-e"nted to
the b'.ank__erA p'er_i"od__ off-six months from the
date on which within the period of
its validity.wvhiVci';.eve_r'*i-st earlier. When a post
datedv cheque "isv.w___r_i_tten or drawn, it is only a bill
«o«f_'x"exc°han_ge._._and so long the same remains a bill
of. provisions of Section 138 are not
laplplliicahgiesi'toithe said instrument. The post dated
cheqzue.«Vbecomes a cheque within the meaning of
..Se_ctio'n"138 of the Act on the date which is
w.ri_tten thereon and the 6 months' period has to
he reckoned for the purposes of proviso (a) to
"Section 138 of the Act from the said date."
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6. The learned counsel for respondent reiies on
Section 118 of the Negotiable Instruments Act -- Presumptions
as to negotiabie instruments sub clause (b) reads as under:
(b) as to date -- that every negotiable
instrument bearing a date was made or drawn
such date."
7. It is the contention of the {earned Se'i:iio:t_w.Counsei.,:it ''= 2
that since the ordersheet dated
proceedings has to be quashed. '
8. Section 465 ofthe Cr.P'.'C.*realdszas folllowsfé
"465. Finding or se'nte'nc'e' v$,z.hlen}.vre_versible
by reason--of'e'rr--or','~orri,i.ssion-- or irreguiarity.
(i)"i..__dSubj'ect'ito provisions hereinbefore
con-;ft'a'ined, n"o..,_VfiVn'dinVc_'.:, sentence or order passed
. ,by'*aa?"'Court of competent jurisdiction shall be
'altered by a Court of appeal,
*co'nfirn'iat'i,jon';=o'r revision on account of any error,
orriissi~.on'v""'or irregularity in the compiaint,
Agsumrrions, warrant, prociamation, order,
.judgment or other proceedings before or during
_ ltrlial or in any inquiry or other proceedings under
' " "this Code, or any error, or irregularity in any
sanction for the prosecution, unless in the opinion
ex'
7.
of that Court, a faiiure of justice has in fact been
occasioned thereby.
(2) In determining whether any error,
omission or irregularity in any proceeding under
this Code, or any error, or irregularity in an_y.._*~._°~.
sanction for the prosecution has occasione§i"'*~a.g..'__!'
failure of justice, the Court shall have regaid:
the fact whether the objection c-ould_and s_Vh"oiii.I'd it
have been raised at an earii'e_r afitage
proceedings."
9. In the case of K M Mai:he.w Vs"K,__/i
Others in Crl.A.No.701/V1,.~9_.98, i'}oenl<a'vvi/s..vv:l3adam
Sambhav <Jam aiiazi in ::}/.A. No.84 9/2002, Hari
Narain Nigarri » Bihar and Others in
cr1.A.N,o;:84a/2o0i2,draped-ed in (2002) 6 scc 670 at para
21 reads asgbunder-2,
A i a grave illegality is committed,
_ the courts should not interfere. They
shou'idv__A'3~allow the Court which is seized of the
irnatter to go on with it. There is always an
liapptellate Court to correct the errors. One should
«--fkeep in mind the principle behind Section 465
Cr.P.C. Any and every irregularity or infraction
cf
of a procedural provision cannot constitute a
ground for interference by a superior Court
unless such irregularity or infraction has caused
irreparable prejudice to the party and requires tow,f*-
be correct at that stage tends to defeat the
of justice instead of serving those ends.'V._
should not be that a man with eriou-g.h nTfiea_n's'c.~§.s 4'
abie to keep the law at bay. TVh4at;'wouEd'ii~m'e5h
the failure of the very system.,4_'_'
10. In the decision of Mgélla Vs
Emperor reported in AIR"*i'930-- the Hon'ble
High Court of Rangoonheld"as"un:de:r~.::j._. Q
"(A). "c.ri;4}i'svri«;ai'l 3's6V_ar{d 367 ---
Omission jutig'vn1en_t "before passing
sentence «shouldif~not.._:vi.ti.ate trial unless it
occasionsafailurle-__of"j'ustice ~ Criminal P.C.,
S.g,5§f37.cs. " _
V it is desirable that Magistrates
express provisions of the law,
l',/etlthe 'ocjmilssion to write a judgment before
pronouncinxg a sentence should not necessarily
.vigtiate»---the trial, unless such omission has in
occasioned a failure of justice: 14 All. 242
land 27 Mad. 237, not Foll.; 23 Cal.SO2, Re|.on.
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(B) Criminai P.C., S 367 ~ Omission to
sign judgment is mere irregularity curable by
Criminal P.C., 5.537.
Where a Magistrate prepares a judgment' l'
but does not sign it, such omission to signwtlheij 'M
judgment amounts to a mer-em'irregu|ari,ty'if
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11. Ai3D|\/ing the §1:i'iQCi9|,5l;"'VVl:a",_?tl'd9.Wn' aiinwthei above
mentioned ruling, in my sheet has
not been signed, -_-is under the
procedural law: in failure of
justice. é'ha'siii-nfiot been raised by the
accused in first time, in this Court this
objection has been ra-i._se'd.s 'Therefore, the contention of the
,_ii'i'e~arnec!.':_j§3en_ior.__Counse-!....that the order sheet has not been
signed:a'ncl"th'erefore, the proceedings have to be quashed has
' _no f0.rce"'and_ithej_same cannot be accepted.
..12__. The next contention urged by learned Senior
"is that cognizance taken by learned magistrate is
if application of mind and therefore it is bad in law.
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curable DY S.S37: A.I.R. 1925:'AII,1',AE99,°Re*lf:"
13. In this regard, the impugned order reads as
under
"Heard the teamed Counsei for
compiainant. Perused the original comp|ain--t::ar2Vd.,:VV'
documents produced aiongwith the..comp_i'ai'rit** "
the sworn statement of the compiainaénft."'--,,O:?1.'
basis of the material available on~..reCord.
satisfied that the compiaivna.::i:'t~~..,has.V'm_adeAV'ouVr~--,:a"""
primafacie case for an offence:VVpu_nis,habie
of the N I Act, Hei§.gj_§§;«, If:prolc'e'ed»,,it'o,pass the
following: I
Reg_ir_ 'case; nlstmtihe accused
in Registe:i.Vi$io§fi,1I punishable u/s
138 Act, 1881, and
issueigulinmonisfto:dtheaicciised by RPAD for the
aforesaid' ioffeizce and postage paid.
Ret;ur'nabie.V by _l1'8/12'/oé."
Vvcarefuivvlpierusal of impugned order, it is clear
that %iVi~ad~*istrate has perused the originai complaint
'nwdand documvc-'ntslGplroduced aiongwith the complaint and also
'":3".4si.A;Vo'rri stater-dent and on the basis of the materials available
éoziérecord, he was satisfied that there was prima facie case
':a'ga.inst the petitionerwaccused. The learned Magistrate has
focused his attention to the averment made in the complaint.
Therefore, it is difficult to say that the learned Magistrate'.Thas
not applied his mind. Therefore, the contention raised
learned Senior Counsel that the cognizance tal<_e'ri"~V.is':ll):acl_
law has no force.
15. The last contention by:/Cthe
Counsel for petitioner is that been
presented within 6 months over the
cheque to the comp.l§in_ant:."'" of this
Court to Section"1:'3_8V Act.
16. for the respondent
has relied the case of Ashok Yeshwant
Badaveji/'s ..Surendra"'madnavrao Nighojakar reported in
wherein the Hon'ble Supreme Court has
v?':SEx"'months' period has to be calculated for
AA purploses of proviso (a) from the date mentioned
.Q_n""A_the face of cheque and not from any eariier
Algdate when drawer actually gave cheque to
" drawee."
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Further, Section 118(b) of the Negotiable Instruments
Act as to date ~ that every negotiable instrument bearing a
date was made or drawn on such date. Six months has to be
calculated from the date mentioned in the cheque. Therefore,
it is difficuit to accept the contention of the learne«d..'44'.~3e'_niogr"
Counsel that the cheque has not been prese_nt_e:d~..V'within
period of six months from the date on
17. There is no precise prin._cipies¥that can"v'%'bVe.i:4appi:;edl
to quash the proceedings. Each _has2the:rel'ore§ to be
considered on its own merit._.'an_d'decision has to
be taken to quash the pr.océe--dir'ivgAs:.,go"r"'v.nVo:t.;~ The iearned
Magistrate has focuisefd-»..:his"atte*ntion to the averrnents made
in the complai_n%t..and 'ta'ke}é.' cognizance of the offence.
vVA\,rermen-i; made in"-'ths'3___..C0mp|aint constitutes the offence
ailegebd; App~!yingv..the principle laid down in the decisions
°".___citeci'stupvraV"i.¢§;;~;2o.o:(3) scc 726 and also not signing of the
order shieefbceinig an curable irregularity, I am of the opinion
that it 'is«.not rarest of rare case where this Court can exercise
__iriher"ent"power to quash the proceedings.
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18. In that View of the matter, I pass the following:
ORDER
This Criminal Petition is dismissed. *bgn/..