Karnataka High Court
Sri H A Shanmukhappa vs Elite Fitness And Wellness Club on 18 November, 2020
Author: John Michael Cunha
Bench: John Michael Cunha
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF NOVEMBER, 2020
BEFORE
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
CRIMINAL PETITION NO.6181/2020
BETWEEN:
1. SRI H A SHANMUKHAPPA
SON OF LATE H.A.AJAPPA,
AGED ABOUT 69 YEARS,
RESIDING AT NO.1028,
25TH MAIN, 39TH CROSS,
JAYANAGAR 4TH BLOCK,
BANGALORE - 560 041.
2. SRI H V ONKARAPPA
SON OF VERBHADRAPPA,
AGED ABOUT 53 YEARS,
RESIDING AT NO.27,
TARALABALU ENCLAVE,
NEAR POLICE STATION,
YELAHANKA, BANGALORE - 560 064.
3. SRI H S MANJUNATH
SON OF H S BHARAMAPPA,
AGED ABOUT 64 YEARS,
RESIDNG AT NO.65, 1ST FLOOR,
34TH CROSS, 16TH MAIN, 4TH BLOCK,
JAYANAGAR, BANGALORE - 560 041.
4. SRI K V BASAVANA GOWDA
SON OF KUNDUR VEERABHADRAPPA,
AGED ABOUT 54 YEARS,
RESIDING AT "KUNDUR PARK"
AMRUTHAHALLI MAIN ROAD,
2
JAKKUR,
BANGALORE - 560 064.
5. SRI BASAVANA GOUDA
SON OF LATE SRI CHENNAGOUDA R.,
AGED ABOUT 75 YEARS,
RESIDING AT NO.09,
TARALABALU ENCLAVE, BB ROAD,
YELAHANKA, BANGALORE - 560 064.
6. SRI NANJUNDA SWAMY B.G.
SON OF SRI GANGADHARAPPA,
AGED ABOUT 52 YEARS,
RESIDING AT NO.36,
TARALABALU ENCLAVE,
BB ROAD, YELAHANKA,
BANGALORE - 560 064.
7. SMT B R SARVAMANGALA
WIFE OF SRI R BASAVANA GOUDA,
AGED ABOUT 67 YEARS,
RESIDING AT NO.32,
TARALABALU ENCLAVE, BB ROAD,
YELAHANKA, BANGALORE - 560 064.
8. SMT H G USHA
WIFE OF SRI DR U. CHANDRASHEKAR
AGED ABOUT 40 YEARS,
RESIDING AT NO.1727/A-9,
2ND CROSS, SIDDAVEERAPPA BADAVANE,
DAVANAGERE - 577 004.
ALL THE PETITIONERS ARE
DULY REPRESENTED BY THEIR
GENERAL POWER OF ATTORNEY HOLDER
SRI.G.T.SHIVAKUMAR
SON OF G.S.THIPPESWAMY,
AGED ABOUT 38 YEARS,
RESIDING AT NO.32,
NEAR KISHORE RESIDENCY,
3
NEW SAPTAGIRI LAYOUT,
UTTARAHALLI,
BANGALORE - 560 061. ... PETITIONERS
(BY SRI KRISHNA PRATAP SINGH, ADVOCATE FOR
SRI GIRIDHAR S. V., ADVOCATE)
AND:
1. ELITE FITNESS AND WELLNESS CLUB
A PROPRIETORSHIP CONCERN,
HAVING ITS OFFICE AT 112,
NEW BEL ROAD, L.G.HALLI,
RMV II STAGE, BANGALORE - 560 094.
BY ITS PROPRIETOR MR. DEVARAJ P.
2. DEVARAJ P.
SON OF SRI PRABHAKAR PRASANNA,
AGED ABOUT YEARS,
PROPRIETOR ELITE FITNESS AND WELLNESS CLUB,
RESIDING AT NO.32/1, 4TH "B" CROSS,
PRABHAKAR LAYOUT, VISHWANATH,
NAGENAHALLI, R T NAGAR POST,
BANGALORE - 560 032.
...RESPONDENTS
THIS CRIMINAL PETITION IS FILED U/S 407 CR.P.C., PRAYING
TO:
A. TRANSFER THE P.C.R. NO.12506/2019 PENDING BEFORE
THE XII ADDITIONAL CHIEF METROPOLITAN MAGISTRATE TO AND
CLUB IT WITH COMPLAINT BEARING FR NO.4683/2019 PENDING
ADJUDICATION BEFORE THE 12TH ADDITIONAL SMALL CAUSE JUDGE
AND XXXVII ADDITIONAL CHIEF METROPOLITAN MAGISTRATE (SCCH-
8).
B. TRANSFER THE P.C.R. NO.12557/2019 PENDING BEFORE
THE XVI ADDITIONAL CHIEF METROPOLITAN MAGISTRATE TO AND
CLUB IT WITH COMPLAINT BEARING FR NO.4683/2019 PENDING
ADJUDICATION BEFORE THE 12TH ADDITIONAL SMALL CAUSE JUDGE
4
AND XXXVII ADDITIONAL CHIEF METROPOLITAN MAGISTRATE (SCCH-
8).
C. TRANSFER THE P.C.R. NO.12310/2019 PENDING BEFORE
THE XIX ADDITIONAL CHIEF METROPOLITAN MAGISTRATE TO AND
CLUB IT WITH COMPLAINT BEARING FR NO.4683/2019 PENDING
ADJUDICATION BEFORE THE 12TH ADDITIONAL SMALL CAUSE JUDGE
AND XXXVII ADDITIONAL CHIEF METROPOLITAN MAGISTRATE (SCCH-
8).
D. TRANSFER THE P.C.R. NO.12496/2019 PENDING BEFORE
THE XII ADDITIONAL CHIEF METROPOLITAN MAGISTRATE TO AND
CLUB IT WITH COMPLAINT BEARING FR NO.4683/2019 PENDING
ADJUDICATION BEFORE THE 12TH ADDITIONAL SMALL CAUSE JUDGE
AND XXXVII ADDITIONAL CHIEF METROPOLITAN MAGISTRATE (SCCH-
8).
E. TRANSFER THE P.C.R. NO.12501/2019 PENDING BEFORE
THE XII ADDITIONAL CHIEF METROPOLITAN MAGISTRATE TO AND
CLUB IT WITH COMPLAINT BEARING FR NO.4683/2019 PENDING
ADJUDICATION BEFORE THE 12TH ADDITIONAL SMALL CAUSE JUDGE
AND XXXVII ADDITIONAL CHIEF METROPOLITAN MAGISTRATE (SCCH-
8).
F. TRANSFER THE P.C.R. NO.12470/2019 PENDING BEFORE
THE XV ADDITIONAL CHIEF METROPOLITAN MAGISTRATE TO AND
CLUB IT WITH COMPLAINT BEARING FR NO.4683/2019 PENDING
ADJUDICATION BEFORE THE 12TH ADDITIONAL SMALL CAUSE JUDGE
AND XXXVII ADDITIONAL CHIEF METROPOLITAN MAGISTRATE (SCCH-
8).
G. TRANSFER THE P.C.R. NO.179/2019 PENDING BEFORE
THE II ADDITIONAL J.M.F.C. AT DAVANAGERE TO AND CLUB IT WITH
COMPLAINT BEARING FR NO.4683/2019 PENDING ADJUDICATION
BEFORE THE 12TH ADDITIONAL SMALL CAUSE JUDGE AND XXXVII
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE (SCCH-8).
THIS CRIMINAL PETITION COMING ON FOR ORDERS THIS DAY,
THE COURT MADE THE FOLLOWING:
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ORDER
Heard learned counsel for the petitioners.
2. The petitioners presented 8 (eight) complaints before the learned Magistrate, under Section 138 of the N.I. Act for dishonour of 8 (eight) cheques issued in favour of the respective petitioners/complainants, by the respondent/accused.
3. According to the petitioners, respondent-accused was a tenant under the petitioners and towards the arrears of rent, cheques were issued by the respondent, which came to be dishonoured. Hence, the petitioners instituted separate proceedings in the court having jurisdiction in terms of Section 142(2) of N.I. Act. The petitioners/complainants have now sought to transfer the above eight complaints to a single Court viz. 12th Additional Small Causes Judge and XXXVII Additional Chief Metropolitan Magistrate (SCCH-8) on the ground that the 6 petitioners/complainants were the joint owners of the premises and respondent No.1 was the tenant of the same and all the cheques were issued by the respondent towards discharge of the rent and a single notice was caused to the respondent and therefore, to avoid multiplicity of trial have sought for transfer of all the cases to a single court.
4. In the course of the arguments learned counsel for the petitioners has referred to Section 142A (2) of the N.I. Act which reads as under :-
"142A. (2) Notwithstanding anything contained in sub-section (2) of Section 142 or sub-section (1), where the payee or the holder in due course, as the case may be, has filed a complaint against the drawer of a cheque in the court having jurisdiction under sub-section (2) of section 142 or the case has been transferred to that court under sub-section (1) and such complaint is pending in that court, all subsequent complaints arising out of section 138 against the same drawer shall be filed before the same court irrespective of whether those 7 cheques were delivered for collection or presented for payment within the territorial jurisdiction of that court."
5. As could be seen from the above provision, sub section (2) of Section 142A of the N.I. Act is applicable in cases when the complaint filed against the accused is pending before the Magistrate, all subsequent complaints arising out of Section 138 of the N.I. Act against the same accused/drawer shall be filed before the same Court irrespective of whether those cheques were delivered for collection or presented for payment within the territorial jurisdiction of that Court.
6. The above provision in my view is not applicable to the facts of the present case. It is not the case of the complainants that as on the date of presentation of the instant complaints, earlier complaints filed by the complainants/petitioners against the respondent were 8 pending in any other Court. On the other hand, the petitioners have sought to transfer the complaints to one court on the ground that the respondent was a tenant under all the petitioners. Firstly, no rent bond has been produced to show that the respondent was a tenant under all the 8 (eight) complainants. Even if it is assumed that the respondent/accused was a tenant under all the complainants in respect of a single premises, yet the forum for trial of the offence under Section 138 of the N.I. Act is regulated by sub section (2) of Section 142 of the N.I.Act. The section reads as under :-
"142 (2). The offence under Section 138 shall be inquired into and tried only by a court within whose local jurisdiction,-
(a) if the cheque is delivered for collection through an account, the branch of the bank where the payee or holder in due course, as the case may be, maintains the account, is situated; or 9
(b) if the cheque is presented for payment by the payee or holder in due course, otherwise through an account, the branch of the drawee bank where the drawer maintains the account, is situated".
7. It is not in dispute that the petitioners /complainants presented the cheques for collection through an account maintained by them in the branch of the Bank where petitioners were holding their account and accordingly, presented the complaints in the proper court having jurisdiction under Section 142(2) of the N.I. Act. The internal arrangement between the various complainants/landlords to receive the rents from a common tenant cannot determine the place/forum of adjudication. The cause of action arisen for each complainant to proceed against the accused is different and distinct. Therefore, merely because the respondent/accused has issued different cheques to different land lords in respect of a single premises cannot be a ground to transfer all the 10 complaints to a single Court. The petition therefore, is misconceived and is liable to be dismissed. Accordingly, the petition is dismissed.
Sd/-
JUDGE rs