Karnataka High Court
B.S.Sundar vs B.S.Suresh on 8 January, 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 08TH DAY OF JANUARY, 2020
BEFORE
THE HON'BLE MR.JUSTICE ASHOK G. NIJAGANNAVAR
CRIMINAL PETITION NO.5230 OF 2013
BETWEEN:
B.S.SUNDAR,
S/O LATE B SANKAPPA POOJARI,
AGED ABOUT 53 YEARS,
OCCUPATION:BUSINESS,
R/O JANAKI NILAYA,
CHOWLU VILLAGE,
NEAR O L V CONVENT SCHOOL,
SOMWARPET,
DISTRICT KODAGU-571236. ...PETITIONER
(BY SRI K V THIMMAIAH, ADVOCATE)
AND:
1. B.S.SURESH,
S/O LATE SRINIVAS SET
AGED ABOUT 62 YEARS
R/O DASWAL
MADIKERI TOWN
DISTRICT KODAGU-571201.
2. STATE OF KARNATAKA,
BY MADIKERI TOWN POLICE STATION,
REPRESENTED BY THE
STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
2
BANGALORE - 560 001. ...RESPONDENTS
(BY SMT. K.B.JAYALAKSHMI, ADVOCATE FOR R1
SRI ROHIT B.J, HCGP FOR R2)
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THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 CR.P.C. PRAYING TO SET ASIDE THE ORDER DATED
20.06.2013 PASSED BY THE PRL. C.J. (JR.DN) AND
J.M.F.C., MADIKERI IN C.C.NO.1475/2013 DIRECTING
ISSUANCE OF PROCESS AGAINST THE PETITIONER AND
QUASH THE PRIVATE COMPLAINT NO.61/2013 (OLD
NO.247/2005) (ANNEXURE-B) FILED BY RESPONDENT
NO.1 CONSEQUENTLY THE ENTIRE PROCEEDINGS
PENDING AGAINST THE PETITIONER.
THIS PETITION COMING ON FOR HEARING THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
This petition is filed by the petitioner-accused under Section 482 of Cr.P.C. for setting aside the order dated 20.06.2013 passed in C.C.No.1475/2013 by the Principal Civil Judge (Jr.Dn.) and JMFC, Madikere directing the issuance of process against the petitioner and to quash the private complaint in P.C.No.61/2013 (old No.247/2005) filed by respondent No.1- complainant and also to quash the entire proceedings pending against the petitioner.
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2. The facts leading to this petition are that on the basis of the private complaint filed by the complainant-respondent No.1 (B.S.Suresh), and on recording the statement of complainant, the learned Magistrate passed the order dated 20.06.2013 to register the case against the petitioner and issue summons to the accused.
3. The allegations are that the complainant is dealing with liquor business at Kodagu District. The accused is also dealing with the liquor business under the name and style of M/s.Bharani Wines at Somwarpet. There were several business transactions regarding supply of liquor of different companies to the accused firm at Somwarpet from Bengaluru and Udupi. For the last 15 years the complainant and the accused are dealing with the liquor business. On 01.07.2003, the accused had borrowed a loan of Rs.50,00,000/- (Rupees Fifty Lakhs only) from the complainant for his 4 liquor business at Madikere and on the same day he had issued a post dated cheque bearing No.302401 drawn on State Bank of Mysuru, Somwarpet Branch in favour of the complainant for a sum of Rs.50,00,000/-. As per the instructions of the accused on 13.08.2005 the complainant presented the said cheque for encashment, but the said cheque was not honoured and returned unpaid on 18.08.2005 with an endorsement "Drawer's signature differs".
The complainant got issued a demand notice and another notice intimating the accused that the criminal proceedings would be initiated against him under Section 420 of IPC for intentionally cheating by changing his signature in order to prevent the complainant from encashing the cheque amount. In spite of service of notice, the accused failed to comply with the demands made in the said notice, but on the contrary, the accused filed a false complaint at Somwarpet Police Station on 21.09.2005 alleging the 5 commission of offence punishable under Sections 380, 417 and 511 of IPC and on 05.10.2005, and also issued a false and evasive reply through his counsel by making false allegations that cheques signed by his brother Sri.B.S.Sridhar were missing from the office premises at Somwarpet. Thus, the accused with the dishonest intention to cheat the complainant had issued the cheque by changing his signature and thereby committed the offence punishable under Sections 192, 415, 417, 418, 420 and 511 of IPC.
4. On recording the sworn statement of the complainant, the learned Magistrate passed the impugned order dated 20.06.2013 for registration of the case and issuance of process against the petitioner. The said order is challenged before this Court.
5. Heard the learned counsel for the petitioner and the learned High Court Government Pleader for the respondent No.2-State.
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Learned counsel representing respondent No.1- complainant has submitted that the complainant- respondent No.1 has expired four years back as informed by the trial Court advocate.
6. Learned counsel for the petitioner-accused has submitted that one Sri B.S.Sridhar, who is the brother of petitioner and also the partner of M/s.Bharani Wines, Somwarpet, had issued a letter dated 21.11.2000 to the Manager of State Bank of Mysore, Somwarpet informing that two blank cheques bearing Nos.302401 and 302402 are missing and if the said cheques are presented to the Bank, the same may be informed to him. Thereafter, one of the missing cheque bearing No.302401 was presented by respondent No.1-complainant to the Bank after lapse of more than five years with a malafide intention to harass the petitioner. Thus, the proceedings initiated against the petitioner is liable to be quashed.
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7. On perusal of the records available at this stage, it is seen that initially the private complaint was filed on 24.10.2005. On recording the sworn statement, the learned Magistrate under Section 156(3) of Cr.P.C. has ordered to conduct the investigation. The Police after making necessary investigation submitted 'B' report on 13.12.2005. After lapse of one year the complainant-respondent No.1 has filed the protest memo on 08.09.2006. Despite granting sufficient opportunity, the complainant-respondent No.1 did not appear before the trial Court. Therefore, on 23.07.2012, the complaint and the protest application filed by the complainant-respondent No.1 were dismissed as the complainant was not diligent in prosecuting his case. Being aggrieved by the said order of dismissal of the complaint, the respondent No.1-complainant preferred the revision petition before the Sessions Court and the order of dismissal of complaint was set aside and the 8 case was restored and posted for recording the sworn statement. At that stage, the petitioner has preferred the present petition challenging the registration of complaint and issuance of process.
8. It is pertinent to note that the brother of the petitioner viz., Sri B.S.Sridhar, had written a letter to the Bank on 21.11.2000 informing the Bank that two cheques bearing Nos.302401 and 302402 were missing and if any of the said cheques are presented to the Bank, the same may be informed for taking necessary action. Thereafter, one of the said missing cheque was presented in the year 2005 by the complainant- respondent No.1 and the same was dishonoured on the reason that the "Drawer's signature differs". Therefore, another notice was issued to the petitioner for alleging the acts of cheating and fraud.
9. The main allegation in the private complaint are that the petitioner-accused had deliberately issued 9 the cheque with the different signature with an intention to deceive and cheat the complainant and he has intentionally changed the signature at the time of issuing the cheque to the complainant in order to prevent the complainant from encashing the cheque amount. But the letter dated 21.11.2000 issued by the brother of the petitioner viz., Sri B.S.Sridhar, to his Bank clearly goes to show that in the year 2000, he had informed the Bank about missing cheques.
10. According to the complainant on 01.07.2003, the petitioner-accused had borrowed a sum of Rs.50,00,000/- and had issued a post dated cheque bearing No.302401 dated 12.08.2005.
If at all, the cheques bearing No.302401 and 302402 were missing, as far back in the year 2000, there was no occasion or chance for the petitioner to issue the said cheque in favour of the complainant. Thus, it appears that the criminal proceedings are 10 initiated with malafide intention with ulterior motive and with a view to spite him due to private and personal grudge.
11. When there are materials to indicate that the criminal proceedings are attended with malafides and that the proceedings are maliciously instituted with ulterior motive, the said proceedings shall have to be quashed as observed in the decision reported in 1992 Supp (1) SCC 335 in the case of State of Haryana and others vs. Bhajan Lal and others.
12. In the facts and circumstances of the case, there are valid grounds to hold that the proceedings were maliciously instituted with the ulterior motive, as such, the proceedings cannot be sustained in law.
13. For the foregoing reasons, I am of the view that the petition deserves to be allowed as there are 11 valid grounds to quash the proceedings. Accordingly, I pass the following:
ORDER i. Petition is allowed.
ii. The order dated 20.06.2013 passed in C.C.No.1475/2013 by the Principal Civil Judge (Jr.Dn.) and JMFC, Madikere and the private complaint in P.C.No.61/2013 (old No.247/2005) filed by respondent No.1- complainant are hereby quashed.
Sd/-
JUDGE BSR