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
1
IN THE HIGH COURT OF KARNATAKA, BANGALORE
DATED THIS THE 30TH DAY OF NOVEMBER 2010
BEFORE
THE HON'E5LE MRJUSTICE C R KUMARASWAMI.
CRIMINAL PETITION NO.4708/2010 A
BETWEEN:
1. M/S DUO PROPERTIES PVT. LTD.
A COMPANY REGISTERED UNDER
COMPANIES ACT,
HAVING ITS REGISTERED OFFI_CE._AT No.28',-._
ULSOOR ROAD, BANGALORE 42*», ' _
REP. BY ITS DIRECTORS
MR. T.PHANI MAHESH _ . " ~
MR. A.M.SHARATH CHAMDRA;--._ ;
2. SRITPHANI M_A--H_ESH,"""'--I: I
S/OZSRI T IC,IASHWART'r{E\iARAY_AF\3'
AGED A3O:JVT'é¢S'~..y,gAR'S.,
DIRECTOR .
M/S DUO PROPERTIE:~_ ('P1 LTD.,
NO.28, ULSOOR R_OAD,=...~~
BFINGALOREI-4'A2."' '
. MR AIM. "SHARATH CHANDRA
'' I fs./O A 'C.M.LJ"i\.'vI__\/ENKATE GOWDA
' _AGED"'A_BOU=T. 49 YEARS,
~. DIRECTOR
'M/S OLIO PROPERTIES (P) LTD.,
No.28, ULSOOR ROAD,
BANGALORE 42.
PETITIONERS
___"(IE3Y SR1. RAVI B. NAIK, SR COUNSEL FOR
A _' M/S. A K S ASSOCIATES, ADV)
.
Ag,»
AND'
MR P. DAYANANDA PAI
S/O LATE P NARASIMHA PAI
NO.10/1, LAKSHMINARAYANA
COMPLEX, GROUND FLOOR
PALACE ROAD,
BANGALORE S2.
RESVPQ4i:\i'DpE§i\t?: . "
(BY SRI:S MAHESH FOR
M/S. S MAHESH & CO., ADV)
THIS CRL.P Is FILED uN'D_ER._ SECT-IoIx'. 4e:21A?oI~<...CI=é.P.c'w O'
PRAYING To QUASH THE 'EMIRE 'PRocEEoI'A:os IN
c.c.:\:o.27o92/09 PENDING ow THE'-..F?_IL!-E» or '§'.HvE xv ACMM,
BANGALORE. =
THIS CRL.P Is COMING on FOFۤ.b'ADMISSRIQN THIS DAY, THE
COURT MADE THE FOLLOWING: *
This:'...AcriminéuI"':'Petit,§§iT.::_:V'is'filed under Section 482 of
Cr.P.C. by the,iea,rned'4Vfio"un'Se| for the petitioners praying to
v4_..C§t3aShV_»»t!:Ti.e'Vvénttre VpreCee_di.ngS in CC. No.27092/2009 pending
'o_n»tij'e§:VieIor.xx[Addi.cMM, Bangalore.
V.VI'é~.!'Te\IeVV'Vheard tearned Counsel for the petitioners
as weii es learned Counsel for the respondent.
The primary facts of the case is as under:
Ex.)
One lVir.P Dayananda Pai, real estate businessman has
presented a complaint before the High Grounds Police Station,
Bangaiore. He has stated in his complaint that ohe»-.44'i's..._a
businessman doing real estate business in
Bangalore and himself and his associates are ~~t-h.ef:ovvn.er-s of 2
various immovable properties both:=__agri.cufitu*ra.'iji'an'dsf-r.__andif
resiclentially converted lands bea*ri.ng various surv'ey.num_Ei)ers
in Doddajala Village, Jala Hobli;2.:E5a.ngal'oi'e_VV:8léiortii Taluk
measuring about 84 acres.._._"':o«.Pet-'_itio.nér.._iio;'3iapproached the
complainant to purchase "p'roVp:eir~tv on behalf of
petitioner No.1. d3i.sci3is'séion:sIand'~-negotiations, they
entered in'toim"a'ni...nv5agreieVnie:nt'.:'_'on 88.05.2005. As per the
agreement.'--pet«itiVoner".»i§i~ol.I~.._a'g«reed to purchase the said 84
acres of iand atithe~ratefofliis.38,50,000/-- per acre and the
.f'to't~ai sale' c,onsivd.eration""'foVr the entire 84 acres was fixed at
Itis stated in the complaint that as on the date
aiogreiement, petitioner No.1 paid a sum of Rs.1,50,00,000/--
iiy_iii-ayes cheque bearing Nos.79791-4 dated 02.04.2005
on UCO Bank, Koramangala Branch and another
5,/'
'»aJ
cheque bearing No.004701 dated 02.04.2005 drawn on UTI
Bank, MG Road Branch and the balance saie consideration by
way of various cheques. It is further stated that as th.erer~;gas
some delay in compietion of the sale transja"ctio_'n..,_._i5the=_
petitioners approached the complainant and offe..r_e~-sivtoi revise -« ..
the terms and conditions of the earliiergjj.ag--re':ern~entdated'
26.05.2005 and after discussions and._vdeliberation:s:a':;nev.r::"r.
agreement dated 15.06.2006 came:"Lo_ beVile-xecutedtgbetween
them. As per the new tp'eititi_oner No.6]. undertook
to buy additional iand apaArt_vl'rori5."__Vi3-€41 a'q.rVeg;..',_'of-'--'land making it
100 acres and ag're'e§d1.'to form to develop the
same as agreed for various other terms
and conditions- undertook to settle the
claims of.erstwh'ile owners oftne lands.
isiurthier stated that in order to settle the various
claimsj.-._¢i3e"t'iti'o~n\e'r,.'l\lo.1 agreed to take the responsibiiity of
Vimplem'enti'n:g "the project alone and agreed to pay a total
of..4_Rs.l95,00,00,000/-- excluding the previous payments
ajndflthe: complainant agreed to release, relinquish and
0 -'renounce his right, title, interest and claim over the entire
project. Accordingiy, they entered into agreement dated
24.05.2008. It is further stated that towards the balance
amount of Rs.35,00,00,000/-- payabie to the com.pVi'ai'naVnt,
petitioner No.1 agreed to transfer sital area mea.s_'uri'n.g;---tQ'
extent of 3,33,333 Soft. situated in a :a'pproved
layout known as DUO Meadows, Eiectron.icg.iCi4ty.," Ba*ngaio_re2;in'
favour of compiainant and .»rto_wardVs,_ the aepaynjenft 'of_'*.
Rs.65,00,00,000/-, petitioner i\ioV.Ht..i';s's2_JVed i/a-riious dated
cheques. As the cheques;..._w%ere7_Vdishono_u.recI,_ the complainant
issued legal notice dated 'frieisp-ite'V"of legal notice,
the petitioners and they have
committediiah ioffenceripunjishiabie under Sections 138 and 141
of Negotiable '-Ihstrurnenits-~..:iXct;" Therefore, the compiainant
requested to ta'i<e_:'su.itabie action against the petitioners.
.0 contention of Sri.Ravi B Naik, learned
Se'nior.--.(,?ounsje!__appearing on behalf of the petitioners that the
'order d'ate'd:A.2Li':'09.2009 has not been signed by the learned
Bangalore. He further submits that cognizance
the iearned Magistrate is without application of
0 The cheque has not been presented within six months
QM",
from the date of handing over of the cheque to the
compiainant.
5. The attention of this Court was
Section 138(a) of the Negotiable Instruments
as under:
"The cheque has been >"pVreisexntedi"_to'~.the"
bank within a period of s'i'x_'monthsv- from tihe'-davtee.
on which it is drawn or within the period" OfVi§§tS
validity, whichever .is*ear|ieri7' " :4
6. Learned' CounsgeU°o--r Lhe:.gre's'po'ri*d,ent relies on the
ruling in the case':oi'é 'Sin.gh_Van'a'**Others Vs State of
Uttar Pradesh ' i~é_pqrr¢%o'iiin§AIR .1954 sc 194, wherein at
para 14 of the 'said ruiing as under:
f'14u..V 'soonasi the judgment is delivered,
becomes th'e"'operative pronouncement of the
' g:V"Coui*vt,fThée'Eaw then provides for the manner in
._ "v?..'._ifp.iiAc'i"':' itgis authenticated and made certain.
AT-he ru'ies3' regarding this differ but they do not
_ forrnvithe essence of the matter and if there is
2 it iirregguiiarity in carrying them out it is curable.
""._h'1"riL:s, if a judgment happens not to be signed and
is inadvertentiy acted on and executed, the
proceedings consequent on it would be valid
(3
because the judgment, if it can be shown to have
been validity delivered, would stand good despite
defects in the mode of its subsequent"-,g
authentication." "
He also relies on another ruling in the "case oVf'~.»4lshlo!?_A
Yeshwant Badave Vs Surendra
and another reported in (2001)'_ 3 SCC";726, l§eaA'd
A and B, it is held that:
"A. Six to" be
calculated for purpose.'Aof'ptrrjviso"--Ia)'from the
date menti0ried_ on:"the'cheque and not
from any_é.ar|g9e'ir.'.dat'e when..d:rawer"actually gave
cheque' C'ou'rt rightly dismissed
appel!ar1t--draw'e.rg's_a'ppAe'al 'against issue of process
againlstghiim Phrases -- "post dated
cheque".'""
A . Postdated cheque, remains a bill of
tri_lvi"_j.the date written on the face of it -
" . o'n'that'.da_té it becomes a cheque.
" find it is further held that:
_ "For prosecuting a person for an offence
under Section 138 of the Negotiable Instruments
Act it is inevitable that the cheque is presented to
V' -. A srucchi.-.date.,h"
the banker within a period of six months from the
date on which it is drawn or within the period of
its vaiidity whichever is earlier. When a post-=.__
dated cheque is written or drawn, it is only a
of exchange and so long the same remainsja'bij_i-...:_5 .;.
of exchange, the provisions of Section 138_a-re nfot i
applicabie to the said instrument" The
cheque becomes a cheque within :';_hre:'n1iiea'ninig
Section 138 of the Actgon thexdate it
written thereon and the Sirnwonths' p'e_riod:".=ha's_
be reckoned for the purposes.of*~-proviso'-(a.)VE to
Section 138 of the Aeifirrorrénh the.said~
7. Section.:'1.18 ofVV'the:v::Fi¢'9'C'5Vti.abie'Instruments Act --
Presumptions.to?lr.n;eg'o:tia_bie E-nstrunwents sub clause (b)
reads as tinder:
("b)_ " as" -- that every negotiable
instrument 'be_Va'rVi'ng a date was made or drawn on
H r question that arises for my consideration
A' The ordersheet dated 24.09.2009 is
W_V"r.ot signed. Therefore, whether it is valid or
invalid?" 0 ,
. 5/
9. it is the contention of the learned Senior Counsel
that since the ordersheet dated 24.09.2009 is not signed, the
proceedings has to be quashed.
10. Section 465 of the Cr.P.C. reads as foiiojwvsjyi
"46S. Finding or sentence'iAiW'h'en 7,re\;re.r,s'ibie_'*7
by reason of error, omission or i'r,re:gA_ul'arity'.« _ " A C
(1) Subject to the p.;fQ"'vri,sionV.s'herein.:befoVre' 9
contained, no finding, sentence. orderivpassied
by a Court of coVn1p:eter'i_t shall be
reversed or altered appeal,
confirmation~o:r':-reviisionioin ~ac'counvt 'oiany error,
omission, "or 'ili.,,irf'regul.ari--ty '.."ili the complaint,
sum'mons,~fg_, warra.nt',».,_' proclamation, order,
judgvrnéeni: or oth'er'i'p.rC-ceedings before or during
trial or"'in_' lanyVV'indL-.ir'y<_o'r other proceedings under
this" Code, "o.r"a'ny'error, or irregularity in any
' svancti'on"ifor theprosecution, unless in the opinion
' a failure of justice has in fact been
H 2 to-c,cas'ion;e_d'thereby.
. :u(':.-3)' in determining whether any error,
9 " omission or irregularity in any proceeding under
Code, or any error, or irregularity in any
sanction for the prosecution has occasioned a
failure of justice, the Court shall have regard to
9
the fact whether the objection could and should
have been raised at an earlier stage in the___
proceedings."
11. In the instant case, the accused has__n'ot. raA_iseid
objection before the Triai Court wathiregaieita non.:_':s';.,K_.!v',',gi:no_oi:
the order sheet dated 24.09.2009.
12. In the case of__K M l<../-i«.l.ll,£_qraiVlf57am and
Others in Cr/.A.No.701/'1Vi99.8;-- Vs Pat:/am
Sambhav Jain and.__AnQth'eii:V::i'n_:" 'Cr!,AiV-No."'é§49/2002, Han'
Narain Nfgarn _0f7_ ifiihar and Others in
Cr/.A.No.ai;?48/2002_2r:eoo--rted_ in @002) 6 scc 670 at para
21 reads asunder:
_'.'.....4:Uin'less' aivgrave iliegaiity is committed,
superior eouits should not interfere. They
' ;.V'sh.oul_d'~la'ii.o'w._the Court which is seized of the
on with it. There is aiways an
AappeV_l'vi'atef~Court to correct the errors. One should
_ l<ee'p_i:n mind the principle behind Section 465-
2 Any and every irreguiarity or infraction
"I.V'or""'a procedural provision cannot constitute a
ground for interference by a superior Court
unless such irregularity or infraction has caused
5/"
I0
1.1
irreparable prejudice to the party and requires to
be correct at that stage tends to defeat the ends _
of justice instead of serving those ends. It ll
should not be that a man with enough means__i;s"'*"
able to keep the law at bay. That would
the failure of the very system."
13. In the decision of Mohameidg:'Hayat.y'i.MuIl3
Emperor reported in AIR 1930 Rlvanlgoon Pionlible
High Court of Rangoon held'as°}-ind--er V' V'
"(A) Criminal ssffacis =an"a7.1'_3a.?7 ~
Omission to;~'vvr1i.te- "passing
sentence i.:_'J._i_ti--a_te~.." tfrial unless it
occasions' faiyl':u:*e;__ot Criminal P.C.,
"l'hou--gh that Magistrates
should thee>rpres.s'..'i'provisions of the law,
yetgthe. omissiioflnyltovnwrite a judgment before
V .orbnoti'ricirig'_ a sentence should not necessariiy
unless such omission has in
"fact a failure of justice: 14 All. 242
and 2?: mail. 237, not Foll.; 23 cai.5o2, Rel.on.
_ _ A (8) Criminal P.C., S 367 -- Omission to
"sign judgment is mere irregularity curable by
"Criminal P.C., s.537.
as
fix'
Where a Magistrate prepares a judgment
but does not sign it, such omission to sign the
judgment amounts to a mere irregularity _ _
curable by s.537: A.I.R. 1925 All. 299, Re_l;.''''*'' '' '
H'
OH.
14. Applying the principle laid drowii in
mentioned ruling, in my view, incase', ititvhiis ordéa:rA~s_ije.et
not been signed, it is a curayb.ll:e:A'~iirregularityiLunjder the
procedural law. Such in failure of
justice. Further, Vthis,__obje'ctio--n:'::braised by the
accused in the€Ti'ial.__(§oIu;'rt;' in this Court this
objection has the contention of the
learned Senior' fio'ur'i's.e:l'that*t.he-'order sheet has not been
signed and th"e.rel'fore", proceedings have to be quashed has
no force-ligand cann'o't--..be accepted.
question that arises for my
' consideratiGn_i"s,:'l
VN"Whether the cognizance taken by the
"learned Magistrate is bad in law?"
9 j/'
K2'
16. In this regard, the impugned order reads as
uhden
«Heard the learned Counsel for the'
complainant. Perused the original complaint
documents produced alongwith the complaintjand..2'
the sworn statement of the comp_,ia.i.F,l__ant. '
basis of the material available on re.co_ird";.,_
satisfied that the complainant has made an 8' R
primafacie case for an offence:"punish"alqle
of the N I Act, Hence, I the
following:
to 58
Register c.rimi;_nalV'case_a*gai,nst the accused
in Register. __offen.jce" punishable u/s
138 oiuthe Act, 1881, and
issue:"'surn'_m'o:§§':V:t'o:%tihe'i'ia:c'c;$sed by RPAD for the
aforesaid,' offenceé' and postage paid.
Re4t;urn_ai3le.b*i'.._1'8/12/088."
-- ivcaiwreful perusal of impugned order, it is clear
}**t.hat thegélitearnedj'-iilagistrate has perused the original complaint
documents produced alongwith the complaint and also
'svliolriw. statement and on the basis of the material available on
he was satisfied that there was prima facie case
V'u"i».algainst the petitioner accused. The learned Magistrate has
if?'
£4
focused the attention to the averment made in the compiaint
by perusing the same. Therefore, it is difficuit to say that the
iearned Magistrate has not applied his mind. Therefore,hi:he_V_
contention raised by the iearned Senior Counsei__;that..'_'t-he
cognizance taken is bad in iaw cannot be accepted.--»,--..'::~.. » '
18. The third question that arises._for;"'my
is that the cheque had not been pr_esente2d-..within*siX.jmonths %
from the date of handing over to th__e'c.orn..piainantp. Attention
of this Court was invited Vto.V:i"Seo_tio;g.ggof Negotiabie
Instruments Act. '
19. iejarVn'ed't'ioVu'nisei for the respondent
has relied oirilthew of Ashok Yeshwant
Badave $ureiidraVirna'dhé.i/rao Nighojakar reported in
the Hon'bie Supreme Court has
heiar :."['=«.§,% ' it
"Si'x.yirrionths' period has to be caicuiated for
purpo's_e_s of proviso (a) from the date mentioned
A onthe face of cheque and not from any eariier
Edaites when drawer actuaily gave cheque to
.....drawee."
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_4.to_fb_:e~.._
calculated from the date mentioned in the cheque. .
it is difficuit to accept the contention ofmthe iea'r'iive'dgSenioAr '4
Cotinsei that the cheque has not been pafei-sen'4t'ed~..W'ith'inf-ii..a
period of six months from the date»on__whic'i:.,_it' is
20. Learned Counsei .i-for thei"pe.t'itioVn'er reiiies"~on"ruiing
in the case of Bharat Damodar_'Kafe:i"'a'nd; Vs State
of A.P. reported in:..(2h:0O3) 559»v};nVd'_ajisvo in the case
of State of Khalid and Others
in cr1.A.Noi§'32;?/Jieegifiggjsi-atei: ': qf i W8 and another Vs
Mohd.Rash_io' fitness in Crl.A.No.328/1994 and
Stat'e._ another Vs Abdul Aziz and Others in
Crliii,.'gNog_32'?fi:9i§42reported in (1995) 1 scc 684 at Head
"note C, it._is he.id_t'h.at:
V g_ "cf Criminal Procedure Code, 1973
A X_':'3._1V9@_. -- 'Taking cognizance' -- Meaning of --
J
J
ffifterent from initiation of proceedings
-»-Cognizance is taken of cases and not of persons
Words and phrases.
constitute the offence aiieged against the petitioners. It is not
the rarest of rare case where this Court can exercise power" to
quash the proceedings. In that view of the matter", I pasVsVt'»th'e_V_
foiiowingz
ORDER
This Criminai Petition is dismissed, *bgn/M ..