Karnataka High Court
M/S Rpa Ferro Industries Pvt.Ltd vs Sri. Jadesh S/O. Late Linganagouda on 11 July, 2017
Author: R.B Budihal
Bench: R.B Budihal.
:1:
IN THE HIGH COURT OF KARNATAKA
DHARWAD BEN CH
DATED THIS THE 11TH DAY OF JULY 2017
BEFORE
THE HON'BLE MR. JUSTICE BUDIHAL. R.B
CRIMINAL PETITION NO.100954/2017
BETWEEN:
1. M/S. RPA FERRO INDUSTRIES PVT.LTD
PLOT NO.267-273, BELUR INDUSTRIAL AREA
BELUR, DHARWAD
REPRESENTED BY ITS MANAGING DIRECTOR.
2. SHRI SUSHANT AGARWAL
AGE:39 YEARS, OCC:BUSINESS,
1ST CROSS, SIDDARAMESHWAR COLONY
R.C NAGAR, DHARWAD
... PETITIONERS
(BY SRI.MRUTYUNJAYA S.HALLIKERI, ADVCOATE)
AND
1. SRI. JADESH S/O. LATE LINGANAGOUDA
AGED ABOUT 42 YEARS,
OCC:BUSINESSMAN & AGRICULTURIST
R/O. TALUR ROAD, LINGAMMA COMPOUND,
BALLARI
2. STATE OF KARNATAKA
THROUGH S.P.P.
HIGH COURT OF KARNATAKA,
DHARWAD.
... RESPONDENTS
(BY SRI.S.B.MATTUR, ADVOCATE FOR R-1
SRI.RAJA RAGHAVENDRA NAIK, HCGP FOR R-2)
:2:
THIS CRIMINAL PETITION IS FILED U/SEC.482 OF CR.P.C.,
PRAYING TO QUASH THE COMPLAINT AND ALL FURTHER
PROCEEDINGS IN CC NO.737/2016 PENDING BEFORE THE
COURT OF I ADDITIONAL CIVIL JUDGE AND JMFC COURT,
BALLARI FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 138
& 142 OF THE N.I. ACT, 1881 READ WITH SECTION 420 OF IPC.
THIS PETITION COMING ON FOR ADMISSION, THIS DAY,
THE COURT, MADE THE FOLLOWING:
ORDER
Though the matter is listed for admission stage, but with the consent of both sides taken up for final disposal.
2. This petition is filed by the petitioners/accused Nos.1 and 2 under Section 482 of Cr.P.C praying the Court to quash the complaint and all the further proceedings in CC.No.737/2016 pending before the Court of I Additional Civil Judge and JMFC Court, Bellari for the alleged offences under Sections 138 and 142 of the N.I.Act, 1881 read with Section 420 of IPC.
3. Brief facts of the case as narrated in the petition by the petitioners that, petitioner No.1 is a registered Company having business establishment at Dharwad, :3: petitioner No.2 is the Managing Director of the petitioner No.1-company. On 11.09.2013 when the petitioner No.2 was traveling from his residence, i.e., from Rani Channamma Nagar to Belur Industrial Area, where his company situated, he lost unsigned cheque book of HDFC Bank, bearing No.000026-000050, which contained totally 25 leaves. Petitioner No.2 moved earth and heaven to trace the lost cheque book, however his efforts went in vain. Having no other resort, the petitioner No.2 registered a complaint before the Sub-Urban Police Station, Dharwad on 11.09.2013. On 14.09.2013 apprehending the misuse of the lost cheque by the miscreants submitted copy of the complaint along with an affidavit to the Manager HDFC Bank, P.B. Road Branch, Dharwad and reported the loss of cheque book and requested the bank Manager to block the cheques. It is further pleaded that, petitioners received legal notice wherein it was stated that, the cheque bearing No.000036 issued by the HDFC Bank, Dharwad was issued by the petitioners to the complainant and when it was presented :4: for encashment it was returned by the Bank with an endorsement that "Account Blocked" and asked the petitioners to pay the cheque amount Rs.10,00,000/-. Petitioners were shocked by the legal notice regarding the misuse of lost cheque, immediately replied to the complainant that, the lost cheque was illegally secured by him and there was no financial transaction between complainant and the petitioners. Hence respondent No.1/Complainant filed the complaint before the Court alleging that the petitioners herein committed the offence under the Negotiable Instruments Act and also as per Section 420 of IPC.
4. Heard the arguments of the learned counsel appearing for the petitioners/accused Nos.1 and 2 and also the learned counsel appearing for the respondent No.1/ complainant and respondent No.2-State.
5. Learned counsel made the submission that, looking to the complaint averments no details are forthcoming when the petitioners issued cheque at what :5: place and how the cheque is given to the respondent No.1/Complainant there are no details in the complaint. It is also his submission that, petitioner No.1 is a Company and petitioner No.2 is the Managing Director of the Company there are no averments in the complaint complying the requirements of the Section 141 of the Negotiable Instruments Act. Hence it is his contention that, in the absence of such requirements to be specifically pleaded in the complaint, the complaint itself is not maintainable. In this connection learned counsel relied upon the decision of the Hon'ble Apex Court reported in (2005) 8 Supreme Court Cases 89 in the case of S.M.S. Pharmaceuticals Ltd. V. Neeta Bhalla, also he relied upon the decision which is filed along with the table of case dated 11.07.2017. Hence it is his contention that, when the cheque book was lost, immediately when he informed the same to the police as well as to the Bank authorities, it is clear that the respondent No.1/Complainant took the advantage of the lost cheque book and filed the case against the petitioners herein. It is his submission that, in :6: view of the materials placed by the petitioners regarding the loss of the cheque book, the complainant ought not to have presented before the Court. Hence he submitted that, there is no prima-facie material made out by the respondent No.1/Complainant for the alleged offences. Hence the learned counsel submitted, it is a case to invoke jurisdiction under Section 482 of Cr.P.C for quashing the proceedings.
6. Per Contra, the learned counsel appearing for the respondent No.1/complainant made the submission that, there are serious disputed facts in this case as contended by the petitioners, whether there is loss of the cheque book or not, if there is loss of the cheque book whether all the cheque leaves were unsigned, he submitted that, in the case on hand he had presented the cheque which is signed by the petitioner No.2 herein, on behalf of the petitioner No.1-Company. It is his submission that, whether the signature of the petitioner No.2 or not, it is also to be testified by the trial Court, it is a matter to be :7: referred to the hand writing experts, he also submitted even the loss of cheque book is disputed by the company, it is also to be testified before the trial Court by adducing cogent evidence and it is a matter of trial. Hence submitted that, only on the averment that, there is loss of the cheque it cannot be taken straight away accepted without offering opportunity to the other side to lead evidence of both sides. Hence he submitted that the petitioners have not made out a case for quashing the proceedings. Hence he submitted to reject the petition.
7. Learned High Court Government Pleader for respondent No.2/State also made the submission that, there is a serious dispute of the factual aspects involved in the case, whatever the petitioners contended in this petition cannot be accepted straightaway without their being opportunity to the other side to testify the veracity of the said averments made in the petition. Hence he too submitted that, petition is not maintainable as it lacks the prima-facie case by the petitioners herein. :8:
8. I have perused the grounds urged in the petition, documents produced by the petitioners by way of annexures, so also I have perused the averments in the complaint, exchange of legal notices between the parties and perused the decisions relied upon by the learned counsel appearing for the petitioners which are referred above.
9. Looking to the averments made in the complaint it is the specific case of the complainant, in para No.7 of the complaint, the petitioner No.2 herein requested the complainant that, the said cheque on 04.04.2016 itself. Therefore, the complainant presented the said cheque on 04.04.2016 through his banker namely Canara Bank, Main Branch, Ballari for realization. Looking to these averments it is the specific case of the complainant that, the petitioner issued the cheque by putting the date. So the contentions of the learned counsel for the petitioners that, there is no specific averments regarding these things cannot be accepted at all when it is pleaded regarding the :9: date of issue of cheque. It is no doubt true the petitioner No.2 has produced the documents as per annexure-A to show that he has informed the alleged loss of the cheque book to the Police Inspector at Dharwad Sub-Urban Police Station. Even if it is accepted the complainant has to be given an opportunity to testify the contention of the petitioners herein. Whether really there is loss of the cheque book, is a factual aspect which cannot be considered by this Court in exercise of its power under Section 482 of Cr.P.C;it is a matter to be ascertained during the course of trial. I am of the opinion that, petitioners have not made out a case to allow the petition and to quash the criminal proceedings. All such contentions of the petitioners are left open to be raised before the trial court.
With this observation petition is rejected.
Sd/-
JUDGE Ckk