Karnataka High Court
Sri. Anand S/O Shivappa Halijoli, vs Sri. Mallikarjun Kadayya Pujari, on 19 October, 2011
Author: Anand Byrareddy
Bench: Anand Byrareddy
IN THE HIGH COURT OF KARNATAKA CIRCULPE BENCEEAT DHARWAD DATED THIS THE 19! DAY OF OCTOBER 208%. BEFORE" PHP HON BLE MR JUSTICE ANAND BYRARE DY _ CRIMINAL PETITION No. 10738/201 | _ Sri. Anand S/o Shivappa Halijcl. Aged about 42 vears. Oce: Avriculture. » Ryo Sansuddi. Ta: Raibag. » aes Dist: Beleaum, 5 : .. Petitioner (By Shr Rea nach mndra ME ali » Advocate.) AND Sri. Malli karj un Kadayya Pujari. Aged Majer. Occ: Mi. 1d) Vishwat rath' Stigars [Ltd.. Betlad Bagew adi. | Pq: Hukkeri. © Dist: Belooura. | " .. Respondent (By Shri Srinand A. Pachchapure. Advocate.) ; _ This Criminal Petition is filed under Section 482 of the Code OF Criminal Procedure secking to call for the records in 2 OO No. 2872011 (P.C.No0.69/2010) on the file of the IMEC Court. ; Hukkeri and 1 quash the impugned order dated 07/01/2011 of taking 'cognizance and registering the C.C. and issuance of process against the petitioner for the offence punishable under Section 138 of the Negotiable Instrument Act even including the entire proceedings in S to C.C.No.28/2011 on the file of the JMFC Court. Hukkeri, as same being illegal and not sustainable in law. a This petition coming on for final hearing this daVo-the Court «. made the following: ; Be ORDER | Heard the learned counsel forthe petitioner and-the- learned counsel for the respondent. | 9 The petitioner is he secused on vthe basis of a complaint lodged by. the respondént'alleging ai offence punishable under Sectior. 138 of the Newoviabte instruments Act. 1881. It is the case of the petitioner Ui there were several infirmities. which go to the root of the "natier, whien rendered the complaint not maintainable before the Court of Magistrate. Hukkeri. However. the : "same. has-been entertained and process has been issued to the : petitioner. On the very grounds now urged in the present petition. the petitioner pad approached the Revisional Court. The Revisional "Court. hewever, has rejected all the contentions and the petitioner is "therefore. before this Court. 3. The learned counsel would point out that the cheque in question has been issued in favour of a company incorporated under 3 Natt the Companies Act. 1956. whereas the complaint is presented "by an individual in his individual capacity. Secondly. the sworn statemeri that was recorded by the Court. was made by yet another individual. sworn statement on behalf of the company. nor is it on record thai he - was authorized to do so. Thirdly. it is Sought to be contended that the intimation by the bank as to, the insitficieney of funds is allegedly issued on 18.6.2010 and the complainant, fad aiso reiterated the same in the compisint and hence the time. within which the notice ought to have heen issued. Fag-ndi heen complied with and therefore there was a threshold bar te the entertainment of the complaint in terms of Section 138 ofthe Negotrable Instruments Act. 1881. "4. [Tt 18 further pointed out that the cheque was issued. ¢ drawn on the Union Bank of India. Raibag Branch. whereas the geaum DCC Bank. HSI Branch. samie has' been presented at the Belg Sankeshwar.--and therefore he would submit that at the pre- ~ cegnizance stage it was incumbent on the Magistrate who was required to examine the issue of jurisdiction in the light of the above "circumstances. which has not been complied with. It is these aspects S =
of the matter which have been lightly negated by the Revisional Court and therefore the petitioner is before this Court. 5, While on the first contention it is te-be noticed that though the complaint is lodged in the individual capacity: by 'an :
individual who happens to be. the Managing Director of the company. in whose favour the cheque: has been issued. the mistake in naming the individual as a complainant is apparently a drafting error by the counsel of the concerned complaint and the complaint cannot be thrown oueon account of such an. infirmity.
Oo Seeondiy..inso far asthe "contention that the sworn statement is made ti Support of the complaint by a third individual who is not said to have been authorized by the company to make the oS swortr statement. is @ matter of evidence and this contention would ~. be Open to the petitioner to be raised at the appropriate time in his derence.
7... Thirdly. a contention that the intimation issued by the daiiker is dated 18.6.2010 and that the notice has not been issued . Within the required period as mandated under Section 138 of the Act is also not tenable. since it is not indicated. as to when the same was S received by the respondent. This is again a matter of evidence and would have to be decided at the trial, &. Fourthly. the question of jurisdiction onthe. ground that the Hukkert Court would not have. jurisdiction in view of the cheque having been drawn on a. bank at Raibag avid it has been presented to a bank at Sankeshwar anda complaint has been filed at Hukkeri. Therefore the conterition that the alleged commission of the offence the presentation of the cheque and the presentation of the complaint being at thiee dirlerent places. aiidwhich allegedly gives rise to a very serious infirmity. Which the trial Court has overlooked and the Revisionat Court hos condoned. is again a contention which would be on, merits of ihe cage aind would have to be addressed with refereace to the evidence that may be tendered. at the trial.
"Notwithstanding. the findings recorded by the Revisional Court. it | would be stificicne | f the question is left open to be canvassed. at the final'stage of che proceedings. after the evidence is completed and ~ raised on the merits of the case.
9, With that observation. as the petitioner has not made out any case. the petition is dismissed. 3 6
10. Any observation made herein or by the Revisienal Court shall not. however. influence the decision of the Court betosy °- Which shall proceed on the basis of the material that may be made available at the trial and the contentions of the: parties shall be. looked into in adjudicating on the complainé. I1. The office is .directed-to. remit. the records to the trial Court. a, oo Sd/= Mrk/-