Karnataka High Court
Jagadeesh Ashok Raje Gaikwad vs Aravinda Impex on 13 June, 2014
Author: N.Ananda
Bench: N.Ananda
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 13TH DAY OF JUNE 2014
BEFORE
THE HON'BLE MR.JUSTICE N.ANANDA
CRIMINAL PETITION No.1524/2014
BETWEEN
JAGADEESH ASHOK RAJE GAIKWAD
S/O ASHOK RAJE GAIKWAD,
AGED ABOUT 35 YEARS, S.R. NO. 682/B,
HOUSE NO.442, BIDAVEWADI-1, PUNE
MAHARASTRA STATE. ... PETITIONER
(BY SRI A.H.BHAGAVAN, ADVOCATE)
AND
ARAVINDA IMPEX
BY ITS PARTNER,
G.ARAVIND TIPPAPETHAM, GULEDGUDDA-587203
BADAMI TALUK, BAGALKOT DISTRICT
NOW R/AT: SHAKTINAGAR
TURUVEKERE-572 227, TUMKUR DISTRICT
REP. BY HIS POWER OF ATTORNEY HOLDER
B.MANJUNATHA S/O.KALINGAIAH
AGED ABOUT 61 YEARS
SHAKTINAGAR, TURUVEKERE-572 227
TUMKUR DISTRICT. ... RESPONDENT
(BY SRI N.S.SANJAY GOWDA, ADVOCATE)
THIS PETITION IS FILED UNDER SECTION 482 CR.P.C.,
PRAYING TO SET ASIDE THE ORDER DATED:11.08.2010,
ISSUING PROCESS TO PETITIONER AND QUASH THE
PROCEEDINGS IN C.C.NO.326/10, ON THE FILE OF CIVIL
JUDGE (JR.DN.) & JMFC AT TURUVEKERE & ETC.
THIS PETITION COMING ON FOR HEARING THIS DAY,
THE COURT MADE THE FOLLOWING:
2
ORDER
The petitioner is arrayed as accused No.2 in C.C.No.326/2010, pending trial for an offence punishable under section 138 of the Negotiable Instruments Act, 1881 (for short, 'the Act'), on the file of Civil Judge (Jr.Dn.) & JMFC at Turuvekere. He has filed this petition to quash the impugned proceedings.
2. I have heard Sri A.H.Bhagavan, learned counsel for petitioner and Sri N.S.Sanjay Gowda, learned counsel for complainant.
3. The petitioner is arrayed as one of the partners of M/s.Vintage Exports and accused No.1 namely Sreeranga Panduranga Desapandy, who is the signatory to dishonoured cheque is also one of the partners. The complaint was presented by one B.Manjunatha as the power of attorney holder of complainant. The trial court has not granted permission to complainant to present the complaint and prosecute complaint through its power of attorney holder. 3 The complainant has not made an application to seek such permission.
4. As could be seen from dishonoured cheque, accused No.1 had drawn cheque in favour of complainant. As per the averments of complaint, complainant and accused No.1 representing M/s.Vintage Exports, of which accused No.2 is also a partner, had entered into an agreement with M/s.Sri Minerals to supply certain quantity of iron-ore to M/s.Sri Minerals and they had received a sum of Rs.4,00,000/- from aforestated firm. The complainant and accused No.1 could not perform their part of contract. Accused No.1 did not return the amount, which he had received from M/s.Sri Minerals, Dharwad. In order to discharge the said liability, accused No.1 issued a cheque for sum of Rs.4,00,000/- to complainant, which on presentation was dishonoured.
5. The averments of complaint do not indicate that accused No.2 was a party to tripartite agreement entered into between M/s.Sri Minerals, Dharwad on one side and complainant and accused No.1 on the other side. The 4 averments of complaint do not bring accused No.2 within the purview of section 142 of the Act. The learned trial Judge, without considering these basic discrepancies in the complaint and affidavit filed by complainant has issued process to accused No.2.
6. The law is fairly well settled that before issuance of process, court has to satisfy and form an opinion for issuance of process under section 204 Cr.P.C. Therefore, the impugned order cannot be sustained. The matter requires reconsideration.
7. In the result, I pass the following:-
ORDER The petition is accepted. The impugned order as it relates to issuance of process to accused No.2 is set aside. The matter is remanded to the learned trial Judge for reconsideration in the light of the observations made herein and in accordance with law.
Sd/-
JUDGE SNN