Karnataka High Court
Mohammed Ashraf vs The Director Of Agricultural Marketing on 12 December, 2018
Author: P.S.Dinesh Kumar
Bench: P.S.Dinesh Kumar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF DECEMBER 2018
BEFORE
THE HON'BLE MR. JUSTICE P.S.DINESH KUMAR
WRIT PETITION NO.37489 of 2017(APMC)
C/W
WRIT PETITION NO.49223 of 2017(GM-RES)
IN WRIT PETITION NO.37489 of 2017
BETWEEN:
MOHAMMED ASHRAF
AGED ABOUT 32 YEARS
S/O P ISMAIL
M/S H K AGRI PRODUCTS
13A/2A1, NADA VILLAGE AND POST
BELTHANGADY TALUK
DAKSHINA KANNADA DISTRICT-574201
... PETITIONER
(BY SRI: B R SATENAHALLI, ADVOCATE)
AND:
1. THE DIRECTOR OF AGRICULTURAL MARKETING
NO.16, 2ND RAJ BHAVAN ROAD
BANGALORE-560001
2. THE SECRETARY
AGRICULTURAL PRODUCE MARKET COMMITTEE
PUTTUR
DAKSHINA KANNADA DISTRICT-574201.
2
3. MANGALA CASHEW INDUSTRIES
HAVING ITS OFFICE AT PADAVINANGADY
MANGALORE-575003
REPRESENTED BY ITS PARTNER
D.VEDAVYAS KAMATH
S/O VAMANA KAMATH
AGED 43 YEARS
4. M/S KALADHAR CASHEW INDUSTRIES
HAVING ITS REGISTERED OFFICE AT
KUMTA TALUK
NORTH CANARA DISTRICT-574201
REPRESENTED BY ITS MANAGING PARTNER
... RESPONDENTS
(BY SRI: I.S.PRAMOD CHANDRA, SPP-II FOR R1
DR. NANDA KISHORE, ADVOCATE FOR R2
GANAPATHI S. SHASTRI, ADVOCATE FOR R3 AND R4)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
226 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR
RECORDS FROM THE RESPONDENTS. DIRECT THE
RESPONDENT/MARKET COMMITTEE TO CONSTITUTE A
COMMITTEE AS ENVISAGED UNDER SECTION 84 OF THE
KARNATAKA AGRICULTURAL PRODUCE MARKETING
(REGULATION AND DEVELOPMENT) ACT, 1966 AND TO
DETERMINE/ASSESS THE ACTUAL DISPUTE/CLAIM BETWEEN
THE PETITIONER AND R-3 AND R-4. DECLARE THAT UNTIL
DECISION IS TAKEN BY THE CONSTITUTED COMMITTEE ABOUT
THE DETERMINATION/ASSESSMENT OF THE ACTUAL AMOUNT
DUE, THE PROCEEDINGS INITIATED BY THE R-3 AND R-4
AGAINST THE PETITIONER FOR RECOVERY OF ALLEGED MONEY
IS ILLEGAL, WITHOUT AUTHORITY OF LAW AND JURISDICTION
OR ELIMINATE THE PROCEEDINGS PENDING IN VARIOUS
3
COURTS BEARING NOS.P.C.NO.104/2015 P.C.NO.105/2015
(C.C.NO.591/2016), P.C.NOS.106/2015 (C.C.NO.590/2016)
P.C.NO.107/2015) (C.C.NO.379/2017), P.C.NO.108/2015
(C.C.NO.372/2017), P.C.NO.109/2015, P.C.NO.110/2015
(C.C.NO.594/2016), P.C.NO.111/2015 (C.C.NO.378/2017
P.C.NO.112/2015 (C.C.NO.593/2016 VIDE ANNEX-C TO C8 ON
THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE JMFC,
BELTHANGADI NOW KUMTA, DAKSHINA KANNADA DISTRICT,
AGAINST THE PETITIONER.
IN WRIT PETITION NO.49223 of 2017
BETWEEN:
MOHAMMED ASHRAFF
AGED 32 YEARS
S/O ISMAIL
PROP. H K SPICES, SUPARI FACTORY
KOLTHAJE HOUSE, KANYADI VILLAGE
PERMANNUR POST, BELTHANGADI
PIN-574 214
DAKSHINA KANNADA DISTRICT
... PETITIONER
(BY SRI: B R SATENAHALLI, ADVOCATE)
AND:
1. THE SECRETARY
AGRICULTURAL PRODUCE MARKET COMMITTEE
BELTHANGADI TALUK
DAKSHINA KANNADA DISTRICT-574 214
2. THE SUPERINTENDENT OF POLICE
DAKSHINA KANNADA DISTRICT
MANGALORE-574 214
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3. MR SANDESH P G
S/O GEORGE
MAJOR
STATION HOUSE OFFICER
BELTHANGADY POLICE STATION
DAKSHINA KANNADA DISTRICT-574214
4. SRI NAGARAJ,
MAJOR
POLICE CONSTABLE
BELTHANGADY POLICE STATION
DAKSHINA KANNADA DISTRICT-574 214
5. MANGALA CASHEW INDUSTRIES
HAVING ITS OFFICE AT PADAVINANGADY
MANGALORE-574 214
REPRESENTED BY ITS PARTNER
D VEDAVYAS KAMATH
S/O VAMANA KAMATH
AGE:43 YEARS
6. THE ASSISTANT REGISTRAR
KARNATAKA STATE HUMAN RIGHTS COMMISSION
4TH FLOOR, 5TH PHASE
MULTISTOREYED BUILDING
BANGALORE-560 001.
... RESPONDENTS
(BY SRI: T. SWAROOP, ADVOCATE FOR R1
I.S.PRAMOD CHANDRA, SPP-II FOR R2
NISHIT KUMAR SHETTY, ADVOCATE FOR R3 & R4
GANAPATHI S. SHASTRI, ADVOCATE FOR R5
V.VINAY GIRI & SRI: T.SURYANARYAN, ADVOCATES
FOR R6)
THIS WRIT PETITION IS FILED UNDER SECTION 482 CRPC
PRAYING TO CALL FOR RECORDS FROM THE RESPONDENTS;
DECLARE THAT THE PROCEEDINGS INITIATED BY THE R-3
5
AGAINST THE PETITIONER IN CC NO.3629/2016 ON THE FILE
OF THE JMFC V COURT, MANGALORE ARE AB INITIO NULL AND
VOID OR ELIMINATE THE SAID PROCEEDINGS FORTHWITH VIDE
ANNEX-E; DIRECT RESPONDENT TO CONSTITUTE A COMMITTEE
AS ENVISAGED UNDER SEC. 84 OF THE KARNATAKA
AGRICULTURAL PRODUCE MARKETING (REGULATION AND
DEVELOPMENT) ACT, 1966 AND TO DETERMINE/ASSESS THE
ACTUAL DISPUTE /CLAIM BETWEEN THE PETITIONER AND R-3;
DIRECT R-5 TO CONSIDER THE REPRESENTATION OF THE
PETITIONER DATED 8.2.2017 AS PER ANNEX-D AND CONDUCT A
DETAILED INVESTIGATION ON THE COMPLAINT OF THE
PETITIONER OF THE VIOLATION OF HUMAN RIGHTS BY AN
INDEPENDENT INVESTIGATING OFFICER AND TAKE ACTION
AGAINST R-2 TO 4.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:-
ORDER
Heard.
2. Petitioner entered into an 'High Seas Agreement' with the complainant-Mangala Cashew Industries to purchase cashew nuts. The petitioner issued ten different cheques towards repayment of value of goods and the said cheques were dishonoured. The complainant initiated proceedings against the petitioner by filing private complaints under Section 138 of Negotiable Instruments Act, 1881. After recording sworn 6 statement, criminal cases have been registered against petitioner and the same are pending before the learned Magistrate at Belthangadi, Dakshina Kannada District.
3. Sri B.R. Satenahalli, learned advocate for the petitioner submitted that the complaints are not maintainable for the following two reasons:-
a. That transactions are interse between members of license holders. Section 84(1) of the Karnataka Agricultural Produce Marketing (Regulation and Development) Act, 1966 ('APMC Act' for short) provides for settlement of disputes between the license holders. Hence, the complainant could not have filed private complaints before the learned Magistrate.
b. Section 12A of The Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts (Amendment Act), 2018 ('The Commercial Courts Act' for short) requires a 7 pre-mediation before any suit is filed and as per Section 21, the Commercial Courts Act shall have over-riding effect over other laws.
4. With the above submissions, Sri Satenahalli prayed that the proceedings before the learned Magistrate be quashed.
5. Sri Ganapathi S. Shastri, learned Advocate for the complainant contended that the petitioner has issued cheques in his individual capacity. There existed no dispute between the parties prior to dishonour of the cheques. After cheques were dishonoured, the petitioner is raising untenable contentions to drag on the proceedings.
6. Sri I.S. Pramod Chandra, learned SPP-II appearing for the State submits that neither the petitioner nor the complainant are licence holders. Insofar as the provisions of the APMC Act are concerned, placing reliance on the decision of this Court in M/s. S.B. Nagaraj and Co. V. M/s. Sri Ganesh Oil Mill (ILR 1999 KAR 4020), learned SPP-II submitted that the said 8 provisions are not applicable insofar as offence punishable under Section 138 of N.I. Act is concerned.
7. I have carefully considered the submissions made by learned Advocates for the petitioner and learned SPP-II for the State.
8. The facts are in a very narrow compass. The petitioner herein is an individual. It is not in dispute that the petitioner purchased cashewnuts from the complainant-Mangala Cashew Industries and issued cheques towards value of goods. The cheques have been dishonoured and proceedings have been initiated under Section 138 of the N.I. Act.
9. So far as the first contention of Sri. Satenahalli with regard to Section 84 of the APMC Act is concerned, this Court in M/s. S.B. Nagaraj and Co., has held that the said provision is not applicable with regard to initiation of proceedings under Section 138 of the N.I. Act.
10. With regard to second contention, 'commercial dispute' is defined in Section 2(c) of the Commercial Courts Act, which reads as follows:-
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2(c) "commercial dispute" means a dispute arising out of -
(i) ordinary transactions of merchants, bankers, financiers and traders such as those relating to mercantile documents, including enforcement and interpretation of such documents;
(ii) export or import of merchandise or services;
(iii) issues relating to admiralty and maritime law;
(iv) transactions relating to aircraft, aircraft engines, aircraft equipment and helicopters, including sales, leasing and financing of the same;
(v) carriage of goods;
(vi) construction and infrastructure contracts, including tenders;
(vii) agreements relating to immovable property used exclusively in trade or commerce;
(viii) franchising agreements;
(ix) distribution and licensing agreements;
(x) management and consultancy agreements;
(xi) joint venture agreements;
(xii) shareholders agreements;
(xiii) subscription and investment agreements pertaining to the services industry including outsourcing services and financial services;
(xiv) mercantile agency and mercantile usage;
(xv) partnership agreements;
(xvi) technology development agreements; (xvii) intellectual property rights relating to registered and unregistered trademarks, copyright, patent, design, domain names, geographical indications and semiconductor integrated circuits; (xviii) agreements for sale of goods or provision of services;10
(xix) exploitation of oil and gas reserves or other natural resources including electromagnetic spectrum; (xx) insurance and re-insurance;
(xxi) contracts of agency relating to any of the above;
and (xxii) such other commercial disputes as may be notified by the Central Government.
Explanation- A commercial dispute shall not cease to be a commercial dispute merely because-
(a) it also involves action for recovery of immovable property or for realization of monies out of immovable property given as security or involves any other relief pertaining to immovable property;
(b) one of the contracting parties is the State or any of its agencies or instrumentalities, or a private body carrying out public functions;
11. No provision under the Commercial Courts Act is pointed out by Sri. Satenahalli which stops a party from initiating any criminal proceeding. No-doubt, Section 21 states that the Act shall have overriding effect. That by itself does not prevent a party from taking action by initiating proceedings under Section 138 of N.I. Act, which is also a special statute. The commercial dispute as extracted hereinabove is with regard to ordinary transaction pointing out to merchants, bankers, financiers and traders such as those relating to mercantile documents, including enforcement and interpretation of such documents. 11
12. In the instant case, the proceedings are initiated by the complainant based on dishonour of cheques. Therefore, in my considered view, the provisions of Commercial Courts Act shall not be a bar for continuation of proceedings under Section 138 of the N.I. Act. Further, it is to be noted that Commercial Courts Act has received accent of the President on 31.12.2015. All the proceedings initiated under Section 138 of N.I. Act are of the year 2015. In the circumstances, on both counts, the arguments advanced on behalf of the petitioner are untenable.
13. Resultantly, these petitions must fail and they are accordingly dismissed.
No costs.
Sd/-
JUDGE *mn/-
ch.yn.