Y Radhakrishna S/O Late Y Bhima Bhat vs K Vasantha Rao on 4 October, 2010

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Karnataka High Court

Y Radhakrishna S/O Late Y Bhima Bhat vs K Vasantha Rao on 4 October, 2010

Bench: C.R.Kumaraswamy

  vD.K.

IN THE HIGH COURT OF KARNATAKA AT BANGALOvi3i'§':.:""E._

DATED THIS THE 4" DAY OF OCTOBER 2O_I;O---- I   

BEFORE Q V V
THE HON'BLE MR. JUSTICE C.Ri,:i
CRIMINAL PETITION _NO.%oS2'2o1o':,.~_.'f " ' it  V
BETWEEN:  V. V V

Y. Radhakrishna

S/o late Y.Bhima Bhat,

Aged about 47 years, '- _ .

Kamath Buiiding Main*Road,y"' * 

Belthangady Ta|ui<,;   g   A ' 

D.K. - 574 214.__ 44  'V      ...,Petitioner

(By Sriyuths.M--;aJ Pradeeép"H..S;', Advocates)
AND: V   i i V

K. Vasantha Rab, " _ ..
S/o K. Suryanaraya_na' Rae,"-
Aged about 63 years}  _
'-San'desh~Niia'ya";  """ "
Aj'u_i<uri;~»!)wha.rma'svtaia,
Beitin...aVII.gaciyv_Taiuk;~_ 

'--  '   '  Respondent

  Nagarajappa, Advocate)

_ it  orVi~.,'Fh.is:'Criminai Petition is filed under Section--482 of Code of
 It  Procedure praying to quash the entire proceedings
d"-.._p'e~r3dving on the file of the Civil Judge (3r.Dn.) & JMFC,

Q',



Belthangady in CC. No.455/2009, which is producee_d*e._at

An nexu re-C.

This Criminal Petition is coming on for adm.isV_si-ion da'y'f_

the Court made the foilowing:
O R D E R

This Criminal Petition is filed» timber Sect_io'n;482":.of'"Code of"? Criminai Procedure prayingnto enftirevproceedings pending on the fiie of tMnef_'ciMvi.iefrgieuijigjet%~i.:(3nr,bn.) & JMFC, ﬁeithangady in produced at Annexure~C. if I if f

2. I havAe" counsel for the petitioner as weli as the iearVned% respondent.

the uco'nten.t«i'on of the learned counsei for the peti.ti'one'i'-V.th'at*n'oiisworn statement has been recorded by the .'u"i..,.___iearneo'.V"'Magis'ti§at.e. Instead of sworn statement, the _L~--.complainarithas submitted the affidavit and entered into the '1._'_'w.:itness box and the documents have been marked. Therefore fV-fft.a'i<'i"ngVfcognizance based on the affidavit is bad in law. In .siiii:;Vport of his contention, he has relied on the decision of this Q/I Court in the case of SMT. 8.R. PREMAKUMARI .vs. gsu,éRA3A CREDIT co-OPERATIVE SOCIETY LIMITED, BANGALQREi'.reporteci.% in 2009(6) Kar.L.3 127.

4. Learned counsel for the res_pon.derrt"'relying'=.o.nwthe decision of this Court in the ,case KASHINATH reported in 2004 Crl'V,Vi'l;~,.3ii'45662'sullbniitsifithat the learned Magistrate can di_s"p.ensi_e i.w]i'th__Vrecording if of sworn statement of the comp_|ainant,_b§/_ acceptin'g'~vhisT..'affidavit. In other words, in lieu of sw__orri;j,state:é'nent,' affid_avit'ea'n be entertained.

5. respondent relying on the ruling reliported 4566 submits that in lieu of sworn staternent", be entertained, taking into the th_equeAi'er§iount of Rs.10,00,000/- lakhs in the presentw._tcase.V,V'a»nd if the trial ends in conviction, double the 'v._n""a'mount can be lefviied as fine. Therefore, it was incumbent upon "".:t'h"e_VVllviagistraitei' to take cognizance and to examine on oath the

7._'"*conapia'ina.nt and the witnesses present to satisfy himself as to veracity of the averments in the complaint. Further, the li"«::o'bject of taking cognizance is to test whether the allegations ex' made in the complaint makes out prima facie case to enable the learned Magistrate to issue process.

6. Taking into consideration of the nature and also the cheque amount involved _i_n...this ' the order passed by the trial Court taking c§g..;jiiz'a'nlce in law and accordingly the set aside. The matter is '=b_Vack..' learned Magistrate. The trial Court "shall statement of the complainant to made in the complaint makes.~oiit_' and thereafter the learned Magvistratle sha'l'lj'Vp:roceVed_:"from the stage of recording the sworn staternewntrl . " these observations, this Criminal .Petiﬁon .?'S5'di5PA°5?d .....

Sdjji Illﬁga...

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