Karnataka High Court
Sri K V S Prakash vs Sri P K Sundaraj on 30 June, 2014
Author: S.N.Satyanarayana
Bench: S.N.Satyanarayana
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 30TH DAY OF JUNE 2014
BEFORE
THE HON'BLE MR.JUSTICE S.N.SATYANARAYANA
CRIMINAL PETITION NO.4588/2010
BETWEEN :
SRI K.V.S.PRAKASH S/O SRI K.S.GUPTA,
AGED ABOUT 56 YEARS,
RESIDING AT NO.369,
4TH CROSS, 3RD PHASE,
J.P.NAGAR, BANGALORE - 560 078. ...PETITIONER
(BY SRI GANESH BHAT.Y.H, ADV.,)
AND:
SRI P.K.SUNDARAJ,
AGED ABOUT 55 YEARS,
S/O SRI P.R.KRISHNASWAMY,
RESIDING AT NO.010, SKYLINE SURABHI,
14/P, VIDYAPEETA ROAD,
B.S.K. 3RD STAGE,
BANGALORE - 560 085.
PRESENTLY RESIDING AT NO.A-201
'SHIVARANJANI' APARTMENT,
12/2, EAST MAIN ROAD,
I.T.I LAY OUT, KATHRIGUPPA MAIN ROAD,
B.S.K.3RD STAGE,
BANGALORE - 560 085. ...RESPONDENT
(BY SRI DHARMAPAL, ADV.,)
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THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO SET
ASIDE THE ORDER DATED 11.09.2007 IN C.C.NO.34098/2002
PASSED BY THE XXII ACMM, BANGALORE AND ORDER
DT.8.4.2010 PASSED BY THE CITY FAST TRACK (SESSIONS)
JUDGE, BANGALORE CITY, FTC-II, BANGALORE IN
CRL.R.P.NO.575/2007 AND ALLOW THE COMPLAINT IN
C.C.NO.34098/2002, ON THE FILE OF 22ND ADDL. CHIEF
METROPOLITAN MAGISTRATE, BANGALORE BY CONVICTING
THE RESPONDENT /ACCUSED FOR THE OFFENCE P/U/S 138
OF N.I. ACT.
THIS CRL.P COMING ON FOR ADMISSION THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
The complainant in CC.No.34098/2002 on the file of XXII ACMM Court, Bangalore, has come up in this petition challenging the order dated 8.4.2010 passed in Crl.R.P.No.575/2007 on the file of Fast Track Court-II, Bangalore, wherein the order dated 11.9.2007 passed in CC.No.34098/2002 in partly entertaining his complaint under Section 138 of the Negotiable Instruments Act, 1881 (NI Act for short) is affirmed.
2. Brief facts leading to this petition are as under: The petitioner herein, who is complainant before the learned Magistrate is said to have given a hand loan in a sum of -3- Rs.7,05,000/- to the respondent and towards repayment of the same it is stated that a cheque was given by him. On presentation, the said cheque came to be dishonoured. Hence, petitioner initiated proceeding against him in CC.No.34098/2002, in which a defence was taken by the respondent stating that the cheque in dispute is given by him, but it is not filled up by him. According to respondent, what was borrowed from the petitioner is only a sum of Rs.3,00,000/- and towards repayment of the same, he has already paid Rs.2,50,000/- and the balance that is payable by him is only a sum of Rs.50,000/-. Accordingly, he admitted his liability to the tune of Rs.50,000/-.
3. In the said proceeding, after evidence was recorded and on appreciation of the same, the learned Magistrate proceeded to allow the complaint to an extent of admitted amount. Being aggrieved by the same, the petitioner-complainant preferred Crl.R.P.575/2007 on the file of Fast Track Court-II, Bangalore, wherein on re-appreciation of the material available on record, the revision court proceeded to dismiss the revision petition upholding the finding given by the learned Magistrate. As -4- against the said concurrent finding of both the courts below, the present petition is filed by the complainant.
4. Heard the learned counsel for petitioner as well as respondent. On going through the material available on record, this court feel that in the light of pleadings and evidence available on record, the finding given by the learned Magistrate in allowing the complaint only to the extent of Rs.50,000/- appears to be just and proper in the facts and circumstances. Though the learned counsel for petitioner-complainant would submit that the concept of allowing the complaint to the extent of admitted liability is alien to Cr.PC., therefore, the orders impugned are required to be quashed, this Court would not accept the same. Here, the dispute which is basically required to be resolved between the parties is, whether the cheque that was issued to the petitioner is with reference to the debt that is due? In the instant case, the respondent accepted the cheque having been issued by him, but he refuses to admit the handwriting on the same as it is of himself. It is also his specific case that it was only for repayment of Rs.50,000/-, for which he is liable and therefore, the complainant could not have initiated -5- proceeding for recovery of the entire sum of Rs.7,05,000/-. As against this defence of respondent, in the proceeding before the learned Magistrate the petitioner has not made any attempt seeking for referring the document/cheque for handwriting expert to demonstrate that the cheque is in fact issued by the accused-respondent in his handwriting and the amount that is written in a sum of Rs.7,05,000/- is in the handwriting of the accused. In the absence of the same, this Court find no reason to believe the contention of the petitioner that the cheque is issued by the respondent in his handwriting for a sum of Rs.7,05,000/- and also in the light of the receipts being produced to show repayment to the petitioner in a sum of Rs.2,50,000/-. In that view of the matter, the reasoning given by the learned Magistrate while passing the order partially considering the petitioner's prayer and the Fast Track Court while deciding the revision petition rightly affirming the same, appears to be just and proper. Therefore, in the light of concurrent finding, this court find that no grounds are made out to admit this petition for quashing the orders impugned. -6-
5. With the aforesaid observations, this criminal petition is dismissed.
Sd/-
JUDGE nd/-