Karnataka High Court
Balasahab Bhanudas Patil vs Ravindra Gopal Devarshi on 6 June, 2022
Author: V.Srishananda
Bench: V.Srishananda
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CRL.P No. 100878 of 2022
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 6TH DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR JUSTICE V.SRISHANANDA
CRIMINAL PETITION NO. 100878 OF 2022 (482)
BETWEEN:
BALASAHAB BHANUDAS PATIL
AGE: 51 YEARS, OCC: AGRICULTURE,
R/O BHUYEWADI-416229,
TQ: KARVEER, DIST: KOLHAPUR,
MAHRASHTRA STATE.
...PETITIONER
(BY SRI CHETAN MUNNOLI, ADV.)
AND:
RAVINDRA GOPAL DEVARSHI,
AGE 61 YEARS,
OCC: AGRICULTURE & DOCTOR,
R/O SAKHARWADI-591237,
NIPPANI, TQ. CHIKKODI (NOW NIPPANI)
NOW NIPPANI, DIST BELAGAVI.
...RESPONDENT
(BY SRI SHIVAKUMAR S.BADAWADAGI, ADV.)
THIS CRIMINAL PETITION IS FILED U/SEC. 482 OF CR.P.C.
PRAYING TO QUASH THE ORDER DATED 01.10.2021 PASSED IN
CRL.REV.PETITION NO.304/2016 ON THE FILE OF THE VII
ADDITIONAL DISTRICT & SESSIONS JUDGE, BELAGAVI, SITTING AT
CHIKKODI VIDE ANNEXURE-E CONFIRMING THE ORDER DATED
02.01.2016 PASSED IN C.C.NO.2/2016 (P.C.NO.111/2015) ON THE
FILE OF THE CIVIL JUDGE AND JMFC, NIPPANI, REGISTERED FOR
THE OFFENCE PUNISHABLE U/SEC. 138 OF NEGOTIABLE
INSTRUMENTS ACT VIDE ANNEXURE-C.
THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE
COURT MADE THE FOLLOWING:
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CRL.P No. 100878 of 2022
ORDER
Heard Sri Chetan Munnoli, learned counsel for the petitioner-accused and Sri Shivakumar S.Badawadagi, learned counsel for the respondent-complainant and perused the records.
2. This petition is filed by the petitioner under Section 482 Cr.PC. with the following prayer:
"Wherefore, it is most respectfully prayed that this Hon'lble Court be pleased to:
(i) Quash the order dated 01.10.2021 passed in Crl.R.P.No.304/2016 on the file of the VII Additional District and Sessions Judge, Belagavi, sitting at Chikkodi vide annexure-E confirming the order dated 02.01.2016 passed in CC No.3/2016 (PC No.112/2015) on the file of the Civil Judge & JMFC, Nippani, registered for the offence punishable under section 138 of the Negotiable Instrument Act vide Annexure-
C, in the interest of justice and equity."
3. Brief facts of the case are as under: -3- CRL.P No. 100878 of 2022
The petitioner-accused is facing criminal prosecution under Section 138 of the Negotiable Instruments Act, 1988 pending in CC No.2/2016, which is re-numbered as CC No.335/2018.
4. The complaint averments reveal that complainant has parted a sum of Rs.25 lakhs to the accused for the purpose of procuring a seat in Medical College of Dr.D.Y. Patil Medical College, Nerul, Navi Mumbai. However, in spite of best efforts made by the petitioner herein, the medical seat could not be procured and therefore, on demand, the accused failed to return the entire amount and instead, he passed on three cheques in a sum of Rs.5 lakhs each. On presentation, the cheques came to be dishonoured with an endorsement "insufficient funds". Statutory notice came to be issued against the petitioner herein which was served and there was no reply to the callings of legal notice and as such, the respondent was constrained to approach the Jurisdictional Magistrate seeking action against the petitioner herein for the offence -4- CRL.P No. 100878 of 2022 punishable under section 138 of the Negotiable Instruments Act, 1988.
5. The petitioner appeared before the learned Trial Magistrate. In pursuance of the summons issued in the said case, the petitioner/accused is contesting the matter.
6. The order issuing summons to face trial was challenged by the petitioner herein by filing a Criminal Revision Petition No.304/2016 on the file of the VII Addl. District and Sessions Judge, Belagavi sitting at Chikkodi. Learned District and Sessions Judge, after hearing the parties by order dated 01.10.2021 dismissed the Criminal Revision Petition negating the grounds urged in the Criminal Revision Petition to question the issuance of summons. Being aggrieved by the same, the accused/petitioner is before this court seeking the aforesaid reliefs.
7. In the petition, following grounds have been raised:
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• "It is submitted that, the Petitioner / Accused has not committed any offence as alleged by the Respondent in the Complaint. Hence, warrants interference of this Hon'ble Court is just and necessary.
• It is submitted that, the Trial Court has failed to note that as per the averments in the alleged complaint the Accused is an agent doing work or giving admission to the Medical College of D. Y. Patil Medical College, Mumbai. The Accused after taking money failed to book seat for the son of the Complainant. Hence, to repay the said amount the Accused issued the disputed cheque to the Complainant. On plain reading of the Complaint it is very much clear that the dispute cheque has been issued to clear the debt arising out of alleged transaction, which is not a legally recoverable debt. It is well settled law that, in order to attract the penal provisions for bouncing of a cheque under Negotiable Instruments Act, it is essential that the dishonoured cheque should have been issued in discharge, wholly or in part, -6- CRL.P No. 100878 of 2022 of any debt or other liability of the drawer to the payee. The Explanation to Section 138 of the NI Act defines the expression debt or other liability as a legally enforceable debt or other liability.
• It is further submitted that, the Trial Court ought to have dismissed the Complaint by holding that, strict liability under Section 138 of NI Act can be enforced only when is cheque is issued in discharge of legally recoverable debt. In the present the transaction averred in the Complaint cannot be termed as legally recoverable debt.
• The Petitioners have not filed any petition/ appeal before any court of law on the same cause of action.
• The Petitioners seeks leave of this Hon'ble court to raise Some other grounds at time of arguments."
8. Re-iterating the above grounds, Sri Chetan Munnoli, learned counsel for the petitioner vehemently contended that there was no privity of contract between -7- CRL.P No. 100878 of 2022 the complainant and the accused/petitioner herein and the amount of Rs.25 lakhs is not paid to the complainant and for the cheques which were parted, there was no consideration for the cheques and therefore, there is no legally recoverable debt and as such, issuance of summons to the petitioner to face the criminal prosecution is thus uncalled for, resulting abuse of process of Court and law and thus prayed for quashing of the entire proceedings by allowing this petition.
9. Per contra, Sri Shivakumar S.Badawadagi, learned counsel appearing for the respondent vehemently contended that petitioner issued three cheques for return of the money received by the petitioner with a promise to get a seat in the Medical college for the purpose of pursuing MS in Orthopedic Speciality and since the seat is not procured, on demand of the amount, cheques came to be issued and therefore, there is no merit in any one of the contentions urged and thus sought for dismissal of the petition.
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10. This court perused the materials on record meticulously in view of the rival contentions of the parties.
11. Admittedly, the order that is sought to be assailed by the petitioner is issuance of summons. What is the defence that is available to the petitioner is to be made out by him to avoid the liability under the dishonoured cheques by leading cogent and convincing evidence on record before the Trial Court.
12. Following the dictum of the Hon'ble Apex court in the case of Indian Bank Association & Ors. Vs. Union Of India & Anr. reported in 1947(2014) 5 SCC 590, wherein the Hon'ble Apex court has issued the following directions:
1) The Metropolitan Magistrate/Judicial Magistrate (MM/JM), on the day when the complaint under Section 138 of the Act is presented, shall scrutinise the complaint and, if the complaint is accompanied by the affidavit, and the affidavit and the documents, if any, are found to be in order, take cognizance and direct issuance of summons.-9- CRL.P No. 100878 of 2022
2) The MM/JM should adopt a pragmatic and realistic approach while issuing summons. Summons must be properly addressed and sent by post as well as by e-mail address got from the complainant. The court, in appropriate cases, may take the assistance of the police or the nearby court to serve notice to the accused. For notice of appearance, a short date be fixed. If the summons is received back unserved, immediate follow-up action be taken.
3) The court may indicate in the summon that if the accused makes an application for compounding of offences at the first hearing of the case and, if such an application is made, the court may pass appropriate orders at the earliest.
4) The court should direct the accused, when he appears to furnish a bail bond, to ensure his appearance during trial and ask him to take notice under Section 251 CrPC to enable him to enter his plea of defence and fix the case for defence evidence, unless an application is made by the accused under Section 145(2) for recalling a witness for cross-examination.
(5) The Court concerned must ensure that examination-in-chief, cross-examination and re-
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CRL.P No. 100878 of 2022 examination of the complainant must be conducted within three months of assigning the case. The Court has option of accepting affidavits of the witnesses instead of examining them in court. The witnesses to the complaint and accused must be available for cross-examination as and when there is direction to this effect by the court."
13. When such is the obligation cast on the petitioner, petitioner approaching this court for quashing of the entire proceedings by resorting to the powers vested with this court under Section 482 of Cr.PC. cannot be countenanced in law.
14. Reserving liberty for the petitioner to urge the defence of cheque did not cover the legally recoverable debt, following order is passed:
The Petition is dismissed.
SD/-
JUDGE EM