Karnataka High Court
Sri L Jayaramareddy vs Sri K R Vijayakumar on 26 August, 2013
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 26TH DAY OF AUGUST, 2013
BEFORE
THE HON'BLE MR. JUSTICE K.N.KESHAVANARAYANA
CRIMINAL PETITION NO.5768 OF 2010
BETWEEN
SRI L JAYARAMAREDDY
S/O LATE LACHAREDDY
AGED ABOUT 43 YEARS
R/O NAMAGONDLU VILLAGE
DARINAYAKANAPALYA HOBLI
GOWRIBIDANUR TALUK
CHIKKABALLAPUR DISTRICT ... PETITIONER
(BY SRI K V NARASIMHAN, ADV)
AND
SRI K R VIJAYAKUMAR
S/O RAMARAJU
AGED ABOUT 56 YEARS
R/O DANDIGANAHALLI
MANCHENAHALLI HOBLI
GOWRIBIDANUR TALUK
CHIKKABALLAPURA DISTRICT ... RESPONDENT
(BY SRI N V PRAKASH, ADV)
THIS CRL.P FILED U/S.482 OF CR.P.C PRAYING TO
SET ASIDE THE ORDER DATED 30.10.2010 PASSED BY
THE DIST. AND SESSIONS JUDGE, CHIKKABALLAPURA IN
CRL.REV.PETITION NO.97/2010 AND ALSO THE ORDER
DT.20.09.2010 PASSED BY THE JMFC, GOWRIBIDANUR IN
C.C.NO.264/2007 ON APPLICATION FILED BY THE
ACCUSED U/S 97 OF THE CRIMINAL PROCEDURE CODE
AND ALL FURTHER PROCEEDINGS THEREON.
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THIS CRL.P COMING ON FOR ADMISSION THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
Petitioner initiated prosecution against the respondent in C.C.No.264/2007 on the file of Civil Judge (Jr.Dn.) and JMFC., Gowribidanur for the offence punishable under Section 138 of N.I.Act inter-alia alleging that the respondent for his family necessities borrowed a sum of Rs.1,00,000/- and issued a post- dated cheque for repayment of the said loan amount and when the said cheque was presented for encashment, the same was returned unpaid with a banker's endorsement 'insufficient funds' and in spite of service of notice, the amount covered under the cheque was not paid. The respondent, upon service of summons, appeared before the learned Magistrate and pleaded not guilty for the accusation made.
2. During the trial, before cross-examination of the complainant, respondent filed application under Section 97 of Cr.P.C. seeking to summon the original report 3 lodged by him before the sub-Inspector of police, Manchenahalli police station, Gowribidanur taluk, which was registered as NCR 68/2009 to substantiate his defense that there was no loan transaction, but on the other hand, there was an agreement of sale executed by him in favour of the complainant agreeing to sell certain immovable properties for which he had received certain amount as advance and since the said transaction fell through, he agreed to repay the advance amount received by him for which purpose he had issued post dated cheque and before the date of the said cheque, he repaid the entire amount, but the complainant failed to return the cheque and in that behalf he had lodged a complaint before the jurisdictional police, who only registered a NCR No.68/2009. Therefore, he sought for summoning the original complaint filed before the police, on the ground that it is very much necessary to substantiate his defense. The said application was opposed by the petitioner.
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3. The learned Magistrate, by the impugned order, allowed the said application and directed summoning of the said document. Against the said order, petitioner filed revision petition in Cr.R.P.97/2010 before the learned Sessions Judge, Chickballapur, which came to be dismissed. Aggrieved by this order, petitioner presented this petition.
4. Heard the learned counsel Sri.K.V.Narasimhan. Perused the impugned orders.
5. As noticed supra, it is the specific defense of the respondent that there was no loan transaction, but on the other hand, only transaction between him and the complainant was regarding sale of immovable property and it was for the repayment of the advance amount, the cheque in question had been issued.
6. As could be seen from the copy of the application made available for perusal of this Court, it is further case of the respondent-accused that before the 5 date mentioned on the cheque, he repaid the entire amount and called upon the complainant to return the cheque, however, the complainant failed to return the cheque and later misused the said cheque by presenting the same for encashment.
7. Having regard to the specific defense put forth by the respondent, in my considered opinion, the Courts below are justified in ordering summoning of the complainant. It is well settled law that the accused in a prosecution for an offence under Section 138 of N.I.Act is entitled for all the opportunity to substantiate his defense. Under these circumstances, I find no merit in this petition.
Therefore, petition is rejected.
Sd/-
JUDGE bkp