Karnataka High Court
Zulekha W/O Late Ismail Nabbuwale vs Mahadev Bharmaji Muchandi S/O Bharmaji ... on 26 September, 2012
Author: Jawad Rahim
Bench: Jawad Rahim
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 26 T H DAY OF SEPTEMBER, 2012
BEFORE
THE HON'BLE MR.JUSTICE JAWAD RAHIM
CRIMINAL PETITION NO.11193/2012
BETWEEN:
Zulekha,
W/o. late Ismail Nabbuwale,
Aged about 61 years,
Residing at CTS No.4818/9,
Nyaya Marg, Subhash Nagar,
Belgaum. ...Petitioner
[ By Shri K.Raghavendra Rao, and
Smt. V. Vidya, Advocates ]
AND:
Mahadev Bharmaji Muchandi,
S/o. Bharmaji Muchandi,
Aged about 67 years,
Occ.: Retired Manager,
R/o. H.No.2448,
Kamat Galli, Belgaum. ...Respondent
This Criminal Petition is filed under Section
482 of the Code of Criminal Procedure seeking to
set aside the order dated 30.05.2012 passed in
Criminal Revision Petition No.469/2011 before the
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Fast Track Court - III and Additional Sessions
Judge, Belgaum, and also the order passed by
J.M.F.C. III - Court, Belgaum, in Criminal Case
No.31/2008 dated 29.10.2011 and allow this
Criminal Petition and grant such other relief as
this Hon'ble Court deem fit to grant in the
circumstances of the case.
This Criminal Petition coming on for
admission, this day, the Court made the following:
ORDER
The petitioner who is facing the charge for offence punishable under Section 138 of the Negotiable Instruments Act in Criminal Case No.31/2008 has sought quashing of the order dated 29.10.2011 rejecting her application filed under Section 255(1) of the Code of Criminal Procedure to grant her discharge.
2. The contractual facts to which the learned counsel has adverted to reveals the respondent - Mahadev Bharmaji Muchandi initiated prosecution for offence punishable under Section 138 of the Negotiable Instruments Act, alleging :3: that he was acquainted with petitioner's husband - Ismail Nabbuwale who was in hotel business at Belgaum. The complainant needed a plot for construction of building, he approached the husband of the petitioner who assured him, he would sell the property bearing CTS No.4824/B2 situate at Civil Hospital Road, Belgaum and in this regard, entered into an agreement to sell showing the sale consideration at Rs.20,00,000/-. However, he did not survive and upon his death on 12.02.2006, the complainant approached the petitioner who acknowledged the liability, but declined to sell the property. She agreed to return Rs.20,00,000/- and issued the impugned cheque which on presentation was dishonoured, resulting in issuance of statutory notice as envisaged under Section 138 (b) of the Negotiable Instruments Act.
3. The petitioner is alleged to have received the notice, but failed to comply. Though she replied, the complainant being not satisfied :4: with such stand she had taken, filed complaint under Section 200 of the Code of Criminal Procedure which was registered by the Judicial Magistrate and petition was summoned.
4. After entering contest, she has questioned the order issuance of summons before this Court, but withdrew the petition to urge all grounds before the Trial Court.
5. In these circumstances, she filed an application under Section 255(1) of the Code of Criminal Procedure to seek discharge. The learned Trial Judge rejected it firstly on the ground that the case in question had to be tried as summons case during which proceedings, there is no specific stage to hear regarding charge. The second ground taken note by the Trial Court is, the trial had commenced and complainant who was examined as P.W.1 has been thoroughly cross- examined by the accused. The process of recording evidence is virtually complete. It also :5: noticed that the action was under Section 138 of the Negotiable Instruments Act and the evidence on records support prima facie complaint's case. However, the learned Trial Judge opined that the accused could well cross-examine other witnesses or lead evidence in rebuttance.
6. The learned counsel would submit that the petitioner had filed a revision before the District Judge, but the Revisional Court without properly appreciating the question of law has dismissed the Criminal Revision Petition No.469/2011 by order dated 30.05.2012 unjustifiably.
7. To seek quashing of the order passed by the Revisional Court and the order passed by the Jurisdictional Magistrate taking cognizance against her, the main ground urged by the petitioner in Section 482 of the Code of Criminal Procedure is, criminal proceedings initiated by the respondent is unsustainable. The complainant as based his :6: claim on an agreement to sell it can be only decided in a Civil Court. It is assertably contended that the petitioner accused has seriously disputed genuineness of the alleged agreement to sell purported to have been executed by her husband. Therefore, it is only the Civil Court, which is competent to decide the genuineness of the agreement. Unless that issue is decided, it cannot be presumed that the impugned cheque is issued in respect of debt or legal liability. The other ground urged is the petitioner having lost her husband was in financial difficulties. She had approached the complainant for financial assistance. The complainant had assured her he will arrange loan and requested her to issue a cheque as security. Believing him he issued the impugned cheque without any amount paid by the complainant to be used only as a security. It is submitted by the petitioner that after receiving the cheque the complainant did not arrange the loan and when demanded by the :7: petitioner failed to return the cheque. The learned counsel submits since the complainant did not arrange for the loan, the petitioner - accused sold properties and has raised three crores which he had paid to the Bank to clear the loan. This itself shows that she could not have issued the cheque the cheque. In short, the petitioner describes the initiation of prosecution against her as mischievous and fraudulent action.
8. Despite such endevour of learned counsel, I find no reason to interfere with the order of the Revisional Court or to quash the proceedings initiated by the respondent for a simple reason, the action under Section 138 of the Negotiable Instruments Act is not strictly criminal or civil. It is partly criminal and partly civil. In that the statutory burden is also cast on the accused to rebut the charge under Section 138 of the Negotiable Instruments Act, in view of presumption under Section 139 of the Negotiable Instruments Act. Therefore, the accused cannot :8: stand hands down to challenge the complainant to establish his case beyond reasonable doubt.
9. For instance even for taking cognizance for such an offence, Section 142 of the Negotiable Instruments Act has to be applied and not the Criminal Procedure. As far as trial is concerned, Section 143 of the Negotiable Instruments Act makes it clear that the trial has to be summary trail following procedure prescribed for summons case, which is covered by provision of Section 251 to Section 258, in chapter XX. The chapter XX deals with summons case, trial by the Magistrate, which does not incorporate in itself a stage to hear regarding charge as is in the case of warrant case. The learned Magistrate has not converted the case at hand for trial applying the procedure prescribed for warrants cases covered chapter XIX of the Code of Criminal Procedure in which the provision of Sections 238 to 245 are found. The petitioner could not have sought for discharge. Even otherwise, the benefit that accused gets by :9: procedure prescribed under chapter XX more beneficial. After receipt of evidence from the prosecution, the Court would be justified to record acquittal, if the case is not established prima facie, whereas in a warrant case, the accused will necessarily have to explain the incriminating circumstances or lead defence evidence as prescribed under Section 243 of the Code of Criminal Procedure.
10. Besides P.W.1 has already been cross- examined thoroughly and about 10 documents are marked. The trial could be expedited to enable the Trial Court to take the final decision rather than interrupting it with an order of discharge or quashing.
Being of this view, the petition is dismissed.
Sd/-
JUDGE Rsh