Karnataka High Court
M/S. Duo Properties Pvt Ltd vs Mr P Dayananda Pai on 30 November, 2010
Author: C.R.Kumaraswamy
Bench: C.R.Kumaraswamy
HdTHEIflGfiCOURT(DFKARNATAKA,BANGALORE
DATED THIS THE 30" DAY OF NOVEMBER 2010
BEFORE
THE HON'BLE MRJUSTICE C R KUMARASWAEYE.Y'_'4:.V ':"..4'~.. "~
CRIMINAL PETITION NO.4897/2010 H
BETWEEN: '
I. M/S DUO PROPERTIES PVT. LTD.
A COMPANY REGISTERE UNDER
COMPANIES ACT, = V
HAVING ITS REGISTERED OEF1'C,E"AI No.23,
ULSOOR ROAD, BANGALORE 42 * ..
REP. BY ITS DIRECTORS,'
MR. TPHANI MAHESH' _ , ,
MR. A.M.SHARA"§"H CHAND_RA.'E._.?*
2 SRIT'PHPA'II1jMAHEfSH _ '
S/0 SR1 TC A:+IwAvRTII..N'A.RA«YAN
A<3ED"AABO_uI' 45 'YEARS,
DIRCTOR . _ '
M/S DUO PROPER"-?_"IE'.3 (P.,I~~LTD.,
NO;.'28,_ ULSOOR ROAD,
BANGALORE 42'.-A ..... .. .
» _'MR A._M, SHARATH CHANDRA
' S/ORAA_"C._,MLsN.IvjENI<ATE GOWDA
~. AGED 'AS';O.uIi.49 YEARS,
'i3._IRC"I"OR * *
M/S DOOPROPERTIES (P) LTD.,
NO.28,':ULSOOR ROAD,
A BANGALORE 42. PETITIONERS
, (B_\'";:SRI.A': RAVI E5. NAIK, SENIOR COUNSEL FOR W5. A K S
' ____ASSO;CIATES, ADVOCATES)
[0
AND:
MR P. DAYANANDA PAI
S/O LATE P NARASIMHA PAI
l\EO.10/1, LAKSHMINARAYANA
COMPLEX, GROUND FLOOR
PALACE ROAD,
BANGALORE S2. RESPONDENT;'"---_,
(BY IVE/S. S MAHESH 8: COMPANY, ADVOCATES)
CRL.P FILED U/S482 OF CR.P.C BY THE ADVOCATE EOVRH-TI~;E_"'*a L'
PETETIONERS PRAYING THAT THIS I-!ON'BLE c.OLiRjT.,VMAVv._eE"
PLEASED TO QUASH THE ENTIREII-_PRCiCEE'Dil\EGSL
C.C.NO.27086/G9 PENDING ON THE FILE _O'r«-VTHE,><I/VAc;Mi\{},_'
BANGALORE.
THIS CRLP Is COMING ON FOR ApM'Iss'ION TeIis..pAY, 'fee
COURT MADE THE FOLLOWING:
This PE;-;titiO*n,"--is 'fii'edv--"'Onder Section 482 of
Cr.P.C. by the' the petitioners praying to
quash the entireppr=OeeedAi'ngs...in C.C. No. 27086/2009 pending
:_.4or».,the ofixxzx Addl";CM.M«, Bangalore.
' heard learned Counsel for the petitioners
weii as Iearne_d..r'Counse| for the respondent.
3. ~ vitae primary facts of the case is as under:
Mr.P Dayananda Pai has presented a complaint
it the XV Addl. Chief Metropolitan Magistrate, Bangalore.
7 /'
3
The accused has issued a cheque bearing No. 197976 dated
26.03.2009, drawn on The Dhanalakshmi Bank Ltd.,
M.G.Road Branch, M.G.Road, Bangalore, for a sum of
Rs.2,00,00,000/- (Rupees Two Crore Only). The said cheque
was presented for encashment and the sa.rn'e,"'--Qvas~..
dishonoured on the ground of "insufficient funds". M
legal notice was issued on 29.O8.2Q0'9."*«.In".l'sp;i.teV':ofV:le.gVaEx"-;
notice, the accused failed to pay the ariniquiiiétffandthereby
have alleged to have committed a--;ig:.'c.ffenc.egpunisjhaxblvyeunsder
Sections 138 and 141 of Naggtiable'.:n"s;-trLi'itigents 'Act, 1881.
4. It is the contentAion foffisvri.__!3§a'xii':.B'_~__3\iaik, learned
Senior Counsel 'appeaj'ri.ng.co'itt-c.:b"e«half of the petitioners that the
order sheet dated.' has not been signed by the
v4.!.earned..t.§f\ddl. CMRM',--v.VB__a_ngaiore. ' He further submits that
cougtni;z'ance.:_ "taice"ri.__ by the learned Magistrate is without
V applicahtionhVof."_"gmiA'ndL The cheque has not been presented
within from the date of handing over of the cheque
«TVtofthe'cozmplainant. The attention of this Court was invited to
I Section' iA38(a) of the Negotiabie Instruments Act.
€vf;'_/
4
5. Learned Counsel for the respondent reiies on the
ruiing in the case of Surendra Singh and Others Vs State of
Uttar Pradesh reported in AIR 1954 SC 194, wherein at
para 14 of the said ruling reads as under:
"14. As soon as the judgment is deiiveéred{.VV':"*ft.
that becomes the operative pronouncement
Court. The Jaw then provides f_o.r....the m'an'n'e:r';Vin"'w "
which it is to be authenticated and
The ruies regarding this differ butlthey
form the essence of the and~._if
irregularity in Carrying theVm_VVV:A'o.ut'~~_._it is iearabge.
Thus, if a judgment n--ot'.to_'bié'~signed and
is inadvertently acted the
proce'e'd'iin'gisiiVi,gonsequent would be vaiid
because can be shown to have
been va'i'id_ity_dieiiviere-d;"1wouId stand good despite
defects in__the mode of its subsequent
""~ . . . . .
au-..thei.ntication.
'trig paiso"--«.rVeii§s--:"on another ruling in the case of Ashok
V".;«F'VYeshwar3t Vs Surendra Madhavrao Nighojakar
anogrheriireported in (2001) 3 scc 726, in Head Notes
Agarid:VB,'*i't is held that:
"A. Six months' period has to be
calculated for 'purpose of proviso (a) from the
?x'"/
5
date mentioned on the face of cheque and not
from any earlier date when drawer actuaiiy gave
cheque to drawee -- High Court rightly dismissed
appe|lant--drawer's appeal against issue of process
against him -- Words and Phrases - "post dated,"-.
cheque?
8. Post dated cheque, remains a
exchange till the date written o.n~th.e fai'je'Hof*iTt
on that date it becomes a cheque'.
And it is further heJdV'th:at.;g_
"For prosecut£ng..V_ a persan §i:ir._ an 'offence
under Section 3.38 ofiktheiN-e_g§'otviat5ie_Instruments
Act it is inevitable that th_ejch-equgei 'is presented to
the t}1anigerAVwit~i:hi,n:"a peri'od of six months from the
date on which .,i:t'i.jsv.d'rawi=:. oi within "the period of
its validity. whsichevs-r"~~~i's earlier. When a post
art-ed cheque"i-swrgigtten or drawn, it is only a bill
.;,ft"exchAandg"e._vand so long the same remains a bill
"of'exci*i»a'n"ge',.ti.ie provisions of Section 138 are not
.'ap'p|ica_ble:'i_to}; the said instrument. The post dated
chieqguegg becomes a cheque within the meaning of
uSe'ctio'n 3.38 of the Act on the date which is
'ii~1_ri:tten thereon and the 6 months' period has to
fbe reckoned for the purposes of proviso (a) to
'Section 138 of the Act from the said date."
. €13' f/t
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6. The learned counsel for respondent relies on
Section 118 of the Negotiable Instruments Act -- Presumptions
as to negotiable instruments sub clause (b) reads as under:
(b) as to date - that every negotiable
instrument bearing a date was made or drawn
such date."
7. It is the contention of the learned
that since the ordersheet dated 24.09i,:'20Q'_§'is not:iAé»ig.:ne.d.,:,,:'th,e1'
proceedings has to be quashed. _
8. Section 465 of the Cr.VP;--Ci"",i*ea'ds aslfollvowsi
"465. Finding or' vvhen,:%'reversible
by re..aso._n-- ofeiiropr,iomi_ss.i.on or irregularity.
(ll)»___"S.ubject;to~.t,'lj'e provisions hereinbefore
_ cor.jtain.ed, n'o..,_VfViVn'din:g, sentence or order passed
- a'a?--."Court of Vcoumpetent jurisdiction shall be
V "-"altered by a Court of appeal,
revision on account of any error,
omissi..on'v"':or irregularity in the complaint,
Apsgummoins, warrant, proclamation, order,
.judgment or other proceedings before or during
Attrlial or in any inquiry or other proceedings under
"this Code, or any error, or irregularity in any
sanction for the prosecution,' unless in the opinion
is
s.,/
7
of that Court, a failure of justice has in fact been
occasioned thereby.
(2) In determining whether any error,
omission or irreguiarity in any proceeding under____
this Code, or any error, or irreguiarity in anyii-.,,_"i~.
sanction for the prosecution has occasioned.fa~.'._'__i'
failure of justice, the Court shall have regarcl
the fact whether the objection ..cou.!.d_
have been raised at an earlier._-sta'ge'=_i'n."theVf-.___
proceedings."
9. In the case ofK.M Mathew' A C/«1ib'ra'f§am and
Others in Crl.A.No. 701/ 1 998, l/s Padam
Sambhavigjairi it in , cri.A. N0. 84 9/2002, Han'
Narain Nioamii Bihar and Others in
_,Cf"l.A.Nd.848/2002../fepotted in (2002) 6 SCC 670 at para
'21 »reads as u_n----d_er.: __
A a grave iilegaiity is committed,
_ the s_i§i;3er'i"or courts should not interfere. They
should' allow the Court which is seized of the
Atyrriatter to go on with it. There is always an
'aooeliate Court to correct the errors. One should
keep in mind the principle behind Section 465
Cr.P.C. Any and every irreguiarity or infraction
of a procedural provision cannot constitute a
ground for interference by a superior Court
unless such irregularity or infraction has causedvfl
irreparable prejudice to the party and require~:§'t'o--«'.,'_~ » it
be correct at that stage tends to defeat the'_"e.ndsf_f."~ i
of justice instead of serving those. gelflds,
should not be that a man with ieno~;l_§'n5 l'rll&3al'"l5r.l§i
able to keep the law at bay..___ Thlatvvoulde."rr:ea:n_L
the failure of the very systemaff
10. In the decisionfitifi Mulla l/5
Emperor reported-in AIR" the Hon'ble
High Court of if
_.35_(A_)"',:Cr:l~i.2g'ina»l.,_j'P.iC."S_slm_3.i36 and 367 -
Omi:ssio_n.AlAtu'._~vVvvV_rite 'j.ud.g_m.ei':t before passing
sentence. shotil'dA:_ijV~.n'ot_::"'vl'tiate trial unless it
occasionsffavilulre Aoflljufstlce -- Criminal P.C.,
it desirable that Magistrates
sho3tl::ij§i»..t:ob'e*,r:the express provisions of the law,
thefimelssion to write a judgment before
pronovuyncilng a sentence should not necessarily
.. ,vitiatc"the trial, unless such omission has in
occasioned a failure of justice: 14 All. 242
and 27 Mad. 237, not Foll.; 23 Cal.502, Rel.on.
(B) Criminal P.C., S 367 ~ Omission to
sign judgment is mere irregularity curable by
Criminal P.C., S.537. g .
Where a Magistrate prepares a judgm_ent"""'wV.' it '
but does not sign it, such omission to sig.n,'j_t:hVeV::"
judgment amounts to a mere""irreg.ularity"«.
II
on.
11. Applying thejpF~l.T'ciD.iesthe above
mentioned ruling, in my sheet has
not been signed,,.--.it'j:-.is under the
procedural lawp cause in failure of
justice. not been raised by the
accused invithe rst time, in this Court this
objection hasbeen Vravisec§'."Therefore, the contention of the
_v«'lea,rneCi._j"'53e.nior.._Counse~i~------that the order sheet has not been
the proceedings have to be quashed has
__no force"and_éthe._same cannot be accepted.
n1_2_. "The next contention' urged by learned Senior
"is that cognizance taken by learned magistrate is
it imt-l1~out application of mind and therefore it is bad in law.
/,
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c::"€'.".'l
curable by 5.537: A.I.R. :l.925.'*Ail7».'.A_'l2'99.*.i:tei..'_
13.
unden
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In this tegard, the impugned order reads as
learned
"Heard the Counsel for
complainant. Perusecl the original complaint'a.a"id.:
documents produced alongwith the,_c4omplaEvn"t=?3nd"
the sworn statement of the cor:n_Vpla,ln,a,rit'.'*a,_On"the':f.,__ A'
basis of the material available on r'e.cord.,,!TIam
satisfied that the complaVir'i«a':n"t.,,has" made j"ouVi~rjva"' he
primafacie case for an offenpc_eVVV:pIJ_nishableu/s 1,3
of the N I Act, Hence, I-'__ p,rocee_d,to_ pass the
following:
Registeér ajlecrimijrzali-case' against the accused
in Register r;i¢;;miirortialn offence punishable u/s
138 ofthel\lVe_gotl'fab!e"lnlstrumeents Act, 1881, and
issuee'-su'mn1ons:t'to,At»h,e'=ati§used by RPAD for the
aforesaidloffencefl: and postage paid.
Returngablea by 18/1 2309."
perusal of impugned order, it is clear
7V,.,,.,..'»that th'e__'4:learnettjflfiagistrate has perused the original complaint
.:_fj;3..nd..,documents produced alongwith the complaint and also
and on the basis of the materials available
'' o.'nlredc§0rd, he was satisfied that there was prima facie case
'ijsV,:_A"'r».a_,gainst the petitioner-accused. The learned Magistrate has
ex"
ii
focused his attention to the averment made in the complaint.
Therefore, it is difficult to say that the learned Magistrate has
not applied his mind. Therefore, the contention raised by the
learned Senior Counsel that the cognizance taken is bad in
law has no force.
15. The last contention urged by the
Counsel for petitioner is that the.cheque.".ha'4s':'.'iio't".b:een_
presented within 6 months from the Zciateejof'Vhand_i'ngng
cheque to the complainant. He.a_"I"s.o ini/i'ted vattentfioniiofthis " if
Court to Section 138 (a) of.Negotia-?nie-_Instrume'nt_Acti
16.j"1"r"» 'tiiglsgre'giie'r-dj'ieerned"co'unsei for the respondent
has reliedzkon. the case of Ashok Yeshwant
Badavega Vs maldhavrao Nighojakar reported in
S"CCl'..7t26 uiherein the Hon'b|e Supreme Court has
C'
months' period has to be calculated for
purposes of proviso (a) from the date mentioned
on the face of cheque and not from any earlier
'date when drawer actuaily gave cheque to
if drawee. " f
%::/
W
._
F-"urther, Section 118(b) of the Negotiable Instruments
Act as to date --- that every negotiable instrument bearing a
date was made or drawn on such date. Six months has to be
calculated from the date mentioned in the cheque. Therefore,
it is difficult to accept the contention of the learnedf~S'e.nio_r
Counsel that the cheque has not been presented
period of six months from the date on_,wh.i.C4h
17. There is no precise princizplesethat be
to quash the proceedings. Eachfizase has theer,efore-Vto" be " if
considered on its own merit andg..the'reafter a decigsigcn has to
be taken to quash the The learned
Magistrate__ha.s* focuses!"his'l»_attei':tion to the averments made
in the com;'::l.aintv Vand'AV.'ta':l§'e.n4Vcognizance of the offence.
._VAvermeijt" made V"in._VV:the&:complaint constitutes the offence
_Appl-y:i'ng_ the principle laid down in the decisions
cited. ;iOG1(3) SCC 726 and also not signing of the
order sf'ieetV:Aoei'ng an curable irregularity, I am of the opinion
._:*thagt"itei.s not rarest of rare case where this Court can exercise
.'in_.he're'nt:power to quash the proceedings.
sf'
18. In that View of the matter, I pass the following:
ORDER
This Criminal Petition is dismissed. V .