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 KARNATAKA, BANGALORE
DATED THIS THE 30?" DAY OF NOVEMBER 2010
BEFORE
THE HOI\I'rsLE MRJUSTICE: C R KUMARASWAM'.-". 'H."-. '
CRIMINAL RETITION E\30.4896/2010 j" '
1 M/S DUO PROPERTIES PVT. LTD.
A COMPANY REGISTERE UNDER
COMPANIES ACT,
HAVING ITS REGISTERED OFPICE~._AT NO.28',._ '
ULSOOR ROAD, BANGALORE 42*, ' _ «_ '
REP. BY ITS DIRECTORS
MR. T.PHANI MAHESH ._ . " 1.
MR. A.M.SHARATH CHA'NORA;--._ ;
2 SRI T"'PH'AN.I'i:MAH'ESH
S/O S RI T C H.WART::! NARAYAN
AGEDA_ABQU'T 45~.$&IEARS,'I'A...' " _
DIRCTOR _ .. _ "
M/S DUO ~PRORERTIE.S (P3: LTD,
NO;28, ULSOORROAD, '
EVRNGALORE 4"2~; ..... .. .
fMR A..: f'=4:.'SfHI'XRATH CHANDRA
" _S/O AfC_ EV!UN_I\£.ENKATE GOWDA
~. AGED'ABOu*:f'49 YEARS,
'DIRCTOR *
M'/S DUOPROPERTIES (P) LTD.,
NO.*28}..ULSOOR ROAD,
.. IABANGALORE 42. PETITIONERS
, '(AEIYg_VSRIH.': RAVI B. NAIK, SENIOR COUNSEL FOR W5. A K S
' __"ASSO.CIATES, ADVOCATES)
so
AND:
IVER P. DAYANANDA PAI
S/O LATE P NARASIMHA PAI
NO.1€}/1, LAKSHMINARAYANA
COMPLEX, GROUND FLOOR
PALACE ROAD,
BANGALORE 52. RESPONDENT;'"----.»
(BY NUS. 5 MAHESH & COMPANY, ADVOCATES)
CRL.P FILED U/S482 OF CR.P.C BY THE ADVOC--ATE 'FORE-Ti '
PETITIONERS PRAYING THAT THIS HON'Bi_E CO.iI_P_;: E'~'!A'i'_ BE"
PLEASED To QUASH THE E1\iTIRE~...'PROCEED'I--f§:'GS' ._;_IN-,
c.c.NO.27085/o9 PENDING ON THE FILE _OFg T_HE'A*><_\_/'--.AI;MIs{iT, ;
BANGALORE.
THIS CRL.P IS COMING ON FOR ADMISSION T_I~+':.s.'OAY, 'jTFiE
COURT MADE THE FOLLOWING: _V V
_.._.._o R
This Criminal PetitiVo"n:"is' 'ifileftl':v.Li'rI«ti'eIf"iSeCti0n 482 Of
Cr.P.C. byiithe for the petitioners praying to
quash the entirehiproeeetiingsiiri C.C. No. 27085/2009 pending
imthe ofixy Addis;cIv:aIy:., Bangaiore.
v.:i':--«.ha'I?e.,h~~eard iearned Counsei for the petitioners
well as Iear'nvedACounse| for the respondent.
2 The primary facts of the case is as under:
Mr.P Dayananda Pai has presented a complaint
V _ the XV Addl. Chief Metropolitan Magistrate, Bangalore.
3
The accused has issued a cheque bearing No. 197994 dated
26.02.2009, drawn on The Dhanalakshmi Bank Ltd.,
iVi.G.Road Branch, M.G.Road, Bangalore, for a SU?7"!;i".'VOf
Rs.2,00,00,000/- (Rupees Two Crore Only). The at
was presented for encashment and the "'samie-.V"wai's._f
dishonoured on the ground of "insufficient'fund'--s"..;'Th'er_e:alfiter!"'.
legal notice was issued on 29.Q8.20aG9.t:'*.V_A.In -of
notice, the accused failed to pay t't'ieTaimouVnt----anditlrierehfifthey
have alleged to have comri1~i.tted.~an' 'oxfffenj'ce_punishable under
Sections 138 and 141 of Negotiaijlie'Vinst_::u'rnen'ts. Act, 1881.
4. It is ;the1,j:'onte_ntigoifof» B Naik, learned
Senior Counsel--ap'pea'ri:n'g»ggo"n::'beh'al'f of the petitioners that the
order sheetidatedgg not been signed by the
._learned,._§fiAdd.!. CM'M,_VV:VBangalore. He further submits that
:ta--k_en,_by the learned Magistrate is without
app"li.calti.on""e'f_~v_i.m'i~r;i'd': The cheque has not been presented
within monthns from the date of handing over of the cheque
wicomplainant. The attention of this Court was invited to
i'38(a) of the Negotiable Instruments Act.
.u J;
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, vy.h_ere-ihfuat-. K
para 14 of the said ruling reads as under:
"14. As soon as the judgrh'e'nt;'i.sfi d.e|ii;ered_,
that becomes the operative pron;oun1c:erhent.o'f
Court. The law then provides for the ma.=1Vn'e..rȤ.n_V
which it is to be authenticateidaaand made'A"cevrtazin.
The ruies regarding :this differVvjbutfitheytdo" not
form the essence of"'t.*ie.rnafiter'fiaVnfd.,:if» there is
irregularity in A.carryivpgw--.:th~eni. 'curable.
Thus, if a judgrrierit h;apg::e'n;s t-o=be.:signed and
is vexecuted, the
proceetdingsi'fvf,gor§:§equen.t' on'._"VVit"'wou|d be valid
because the' be shown to have
been vaI"i--d4_itiy Vdeliv'ered':,:""ifvoufd stand good despite
defects the' rnode of its subsequent
au71h~eF}f.iCaition."" *****
tie'Va'iso:--«i.reiiVes.:.ion another ruling in the case of Ashok
i'vF""'VYeshwaiv.t £3a'da7ve Vs Surendra Madhavrao Nighojakar
t""ifatid"anQtheii<----reported In (2001) 3 SCC 726, in Head Notes
it is held that:
"A. Six months' period has to be
calculated for purpose of proviso (a) from the
date mentioned on the face of cheque and not
from any earlier date when drawer actually gave
cheque to drawee -- High Court rightly dismissed'T'».
appellant--drawer's appeal against issue of proce_£=:sf~.."~..
against him -- Words and Phrases -- "post.--A4dated:"C" 'V'.
cheque".
B. Post dated cheque, :"'rern_ai'riVs 'at
exchange till the date writtenxon thefacefofA...it...:
on that date it becomes a chletque. _
And it is furthei*«._hk:l_d 'thapfui
"For pro:se_cutin'g""aiilipersonx offence
under Section oi".the:JNegojtialileinstruments
Act it is presented to
the £§ankerA'w.i*th.iV_n3'«a of six months from the
date or within the period of
its valicillitypii earlier. When a post
chequleisg written or drawn, it is only a bill
.of"exE:hanhge_ and so long the same remains a bill
"df."e><ci1.ainv§e,_t_i.:e provisions of Section 138 are not
"appé|icable'j__to' the said instrument. The post dated
chéiequea becomes a cheque within the meaning of
Section: 138 of the Act on the date which is
'w_rit'ten thereon and the 6 months' period has to
Vlgbe reckoned for the purposes of proviso (a) to
Section 138 of the Act from the said date."
1.9'
6
6. The learned counsel for respondent relies on
Section 118 of the Negotiable Instruments Act -- Presumptions
as to negotiable 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 learned Seriior 'Counsei~
that since the ordersheet dated
proceedings has to be quashed. _
8. Section 465 of the cr.p.c; rea;;is as ioiiewei:
"465. Finding or vise.n'teri{ce i reversible
by reason of 'erro_,t',io'n1i,ss--ion or irreguiarity.
Subject._t'o~.:the provisions hereinbefore
V contained, n'o.__,Vfindin:sg, sentence or order passed
.,1;éy'"a'?'jco"u»r,t ofvvcornpetent jurisdiction shall be
V "filtered by a Court of appeai,
".co':iifirma«tion'VVor revision on account of any error,
o\m.iss--ion""'V'or irregularity in the complaint,
, summohns, warrant, proclamation, order,
v.j,ud_gment or other proceedings before or during
Vgtrial or in any inquiry or other proceedings under
"this Code, or any error, or irreguiarity in any
sanction for the prosecution, unless in the opinion
iéif
of that Court, a failure of justice has in fact been
occasioned thereby.
(2) In determining whether. any error,».,:"~..l_h'=-V
omission or irregularity in any proceeding .;.
this Code, or any error, or irregularity"_ih""..,anyf~ in
sanction for the prosecution h-as"'occasion.e:d'-»',a
failure of justice, the Court shall,'have"reigardrtoyhh
the fact whether the objection couldand it
have been raised at an é'arl'iier sta'g_e"'ri.n-Z the
proceedings."
9. In the caseof K.iv?'Marh'e.ifiz._lk'sV'.K:A7,»€lbraham and
Others in Crl._A--.h'o. l/i'vef<hV(§oenka Vs Padam
Sambhav 1_iaih .A fCrl.A.N0.849/2002, Han'
Narain Niganfr - Bihar and Others in
Cr/.A.No._i{34&/2002*-reported in (2002) 5 scc 670 at para
23; reads _as,u __
a grave illegality is committed,
_ the'-.su..p"er~io'r courts should not interfere. They
V shoul'd..V__lallow the Court which is seized of the
A rynatter to go on with it. There is always an
lapphellate Court to correct the errors. One should
-»v--kieep in mind the principle behind Section 465
Cr.P.C. Any and every irregularity or infraction
8
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 to
be correct at that stage tends to defeat the ends
of justice instead of serving those ends.
shouid not be that a man with enough mean;s~~--is.[;.__'__;'if
able to keep the law at bay. That would
the failure of the very system."
:10. in the decision of Mohan1_edj_A.Hayif%ifA.g"r»4ul/er:/"'v§'~._VVg
Emperor reported in AIR 1930'l"t'sF§angoon._77,f'.thAev_i;ion'bie
High Court of Rangoon heidas uri'de_rVA if
"(A) criminai 3%-tfa5r;a3e7 M
Omit-3sio_n.A 'jrttd-i;i_rr1_ei"it before passing
sentence'-- shoju'IdIjljV*.not.:f"»ritiate trial unless it
occjasionscfailulre o_fl"j..ullstice -- Criminal P.C.,
'though it is desirable that Magistrates
,shorti:|jd».,job'eVy:the express provisions of the iaw,
the$oj_mrission to write a judgment before
pwronoluncilng a sentence should not necessarily
A. A/_itiat'e.'the trial, unless such omission has in
'v.fa:c't occasioned a failure of justice: 14 All. 242
and 27 Mad. 237, not Foil.; 23 Cai.502, Rei.on.
9
(B) Criminal P.C., S 367 ~ Omission to
sign judgment is mere irregularity curable by
Criminal P.C., S.537.
Where a Magistrate prepares a judgment
but does not sign it, such omission to sign the
judgment amounts to a mere irregularity
I!
OH.
curable by s.537: A.I.R. 1925 All. 299,
11. Applying the principles laid
mentioned ruling, in my view, ir-'ca.se, if'-the order1.sl*'.«e.€,.lt has
not been signed, it is a curab__l_e'-._ir:.egularityunder the
procedural law. Such om"i'--ss7'io'n'--_wi.j|>ivVnt;rtjc'a'ugse in failure of
justice, Fu'rther;':j;thi§i§:,p'biect'io'n h"a's"n;ot been raised by the
accused in the'Trial.Court.'V.l%o:':':ti.2e.first time, in this Court this
objection_has'lbeervi Vra'i._sed_.s 'Therefore, the contention of the
:_vr'i'e~ar_ned'1_:\§3e{1iV:or._Couns*--l----«---that the order sheet has not been
signedla'nd"therefo're, the proceedings have to be quashed has
fo.rce"'and_Athe.same cannot be accepted.
12. '~_'The next contention urged by learned Senior
Co'-u"_nsel"""§«s that cognizance taken by learned magistrate is
V -without application of mind and therefore it is bad in law.
9
-.-_s*"
13.
under:
10
In this regard, the impugned order reads as
"Heard the learned Counsel for
complainant. Perused the original complair1«'t__:'anjd.. %
documents produced alongwith the CompI.a'i'nt'a,nr:lV'' 4'
the sworn statement of the cornpiai_-i1a.nt.l'ii.On"th'e':.,,,... 'A
basis of the material available on.record.,,l~"--I.arri
satisfied that the comp|aina_g:n't._,ghas.V" ma'deg:-QuAi*:gv4'a""
primafacie case for an offenceV':plu_n'iVs_hable"u/vs,
of the N I Act, Hen,c'e--, I5:pr.oc'eed.,"to,_pass the
following:
Register af'c_r_imiriaI'caseaigainsltlllthe accused
in Register. i'-él_oV,»'A_IVII 2For._V'a~n_' offence punishable u/s
138 orthei.l1egogtli aili:ae,gmistrumélnts Act, 1881, and
issue""surn_m'onsto.:tiiie_'i'ia,,cc:Jsed by RPAD for the
aforesaid,offence:'.._if.:.PF .and postage paid.
Returiwable byiws/12/09."
or perusal of impugned order, it is clear
' »VV'that theiearvgnedlvl:ifslagistrate has perused the original complaint
--._f_f;5"'Fj'~documents produced alongwith the complaint and also
4:'-'.V.Vls'i«:olr'n'statement and on the basis of the materials available
' he was satisfied that there was prima facie case
:'ut'ag:ainst the petitioner--accused. The learned Magistrate has
2"}
3,,/'"
11
focused his attention to the averment made in the compiaint.
Therefore, it is difficult to say that the learned Magistrate has
not applied his mind. Therefore, the contention raised by the
learned Senior Counsel that the cognizance taken is bad in
law has no force. .
15. The last contention urged by the "
Counsel for petitioner is that the:-ic'he~q.ue-'_"haisi"notVV' 'V
presented within 6 months from the
cheque to the complainant. He a..l:':St>.ypinvi.te~d attentVi'on'''ofthis ''
Court to Section 138 (a) of E§ylegotia'i3l»é:'In'strumen't'-Act:
16. tt:iis»V_.r&f§:§4rd',.:l'ea'rned.HCoVunse| for the respondent
has reiied A'on"the' case of Ashok Yeshwant
Badave;'Vs_Sufen_dra' rnadhavrao Nighojakar reported in
726 wherein the Hon'ble Supreme Court has
months' period has to be caiculated for
AA Tpur.pQ.:§es of proviso (a) from the date mentioned
the face of cheque and not from any earlier
date when drawer actually gave cheque to
S drawee."
]7
an
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
caicuiated from the date mentioned in the cheque. Therefore,
it is difficult to accept the contention of the
Counsef that the cheque has not been presented:'_w'it~hin_ if
period of six months from the date on Zvyhich
17. There is no precise principfes'-thllatpcan"i§.ev.aVpp!'3ied%
to quash the proceedings. Each has tnerenforei to be
considered on its own meritxand'A.the»r'eafter:a~ decision has to
be taken to quash the proceeidingss<__o"r."v_no't§,f'The Eearned
Magistrate has. focu'sejd-.:Lhiis'4'attention to the averments made
in the compl"ai_ntsVaVndflu'tak.en"cognizance of the offence.
4Av.erment:.'m'ade in'----thVe___'complaint constitutes the offence
alvi_¢<;ed'.-»__A,ppiy'in'g_the principle laid down in the decisions
cited suprai'.é;','»%:2ooi(3) scc 726 and aiso not signing of the
order shuueett an curable irreguiarity, I am of the opinion
--..:that.. it iisanotflrarest of rare case where this Court can exercise
inherent power to quash the proceedings.
18. In that View of the matter, I pass the foiiowing:
ORDER
This Criminal Petition is dismissed. ' «V ' >!<bgn/..