IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 08TH DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.5740 OF 2015 BETWEEN:
ABDUL HAMEED AGED ABOUT 35 YEARS, S/O ABUBAKKER, R/AT H.A. VILLA CHEMBU, SAMPAJE VILLAGE, MADIKERI TALUK, KODAGU-574234 (BY SRI: KETHAN KUMAR, ADVOCATE) AND:
ASHRAFF K.S. S/O SEEDIKUNHI, AGED ABOUT 32 YEARS, R/AT SRIKERE TOTA, NETTANIGEMUDONOOR VILLAGE, PUTTUR TALUK DAKSHINA KANNADA -574 153 ... PETITIONER ... RESPONDENT (RESPONDENT SERVED AND UNREPRESENTED) THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO QUASH THE ORDER DATED 15.07.2015 PASSED BY THE COURT OF V ADDL. DISTRICT AND SESSIONS JUDGE, DAKSHINA KANNADA, MANGALURU, SITTING AT PUTTUR IN CRIMINAL REVISION PETITION No.5007/2015.
THIS CRL.P COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R Petitioner is aggrieved by the order passed by the V Addl. District & Sessions Judge, Dakshina Kannada, Mangalore, Sitting at Puttur, Dakshina Kannada in Crl.R.P.No.5007/2015 dated 15.07.2015, whereby the learned Sessions Judge has set-aside the order passed by the learned Magistrate in C.C.No.220/2013 rejecting the application filed by the respondent herein/accused under Section 258 Cr.P.C..
2. The brief facts essential for the disposal of the petition are that the petitioner herein presented a complaint under Section 200 Cr.P.C. seeking action against the respondent/accused for dishonour of cheque for Rs.3,50,000/- under Section 138 of N.I. Act. On taking cognizance of the offence, summons was issued to the respondent. The complainant examined himself as PW-1 and produced the original cheque, bank endorsement, copy of the legal notice and postal receipts and cover addressed to the respondent. When the matter was set down for cross-examination of the complainant/PW-1, the respondent herein moved an application under Section 258 Cr.P.C. seeking to stop the proceedings on the ground that the complainant/petitioner has no cause of action to initiate proceedings against the respondent under Section 138 of N.I. Act.
3. The contention of the respondent is that the dishonour memo issued by the Federal Bank where the cheque was presented for encashment was dated 10.08.2013, whereas legal notice was issued to the respondent on 27.06.2013. As such, there was no cause of action for the petitioner to take recourse to Section 138 of N.I. Act.
4. The learned Magistrate referred to the date mentioned in the dishonour memo Ex-P2 and was of the opinion that by mistake the date was shown as 10.8.2013. However, the learned Sessions Judge, on reconsidering the matter was of the opinion that the trial Court was not justified in arriving on its own conclusion with regard to the date reflected in Ex-P2, as the said endorsement was issued only on 10.08.2013. Consequently, the learned Sessions Judge reversed the order of the learned Magistrate and allowed the application filed under Section 258 Cr.P.C. and thereby closed the complaint under Section 258 of Cr.P.C.
5. The learned counsel for the petitioner at the outset would submit that the provisions of Section 258 Cr.P.C. are not applicable to the facts of the case. The said provision is applicable only to warrant cases and not the proceedings under Section 138 of N.I Act. Iin support of his argument, learned counsel has placed reliance on a decision of Gujarat High Court in the case of MEHTA PRAFULCHANDRA KALIDAS v. PATEL CHELJIBHAI KALIDAS AND ANOTHER reported in 2006 Crl.L.J.1660.
6. On the question of fact, learned counsel would submit that in addition to Ex-P2, the complainant had produced Ex-P3 viz., the endorsement issued by Canara Bank, Sullia, to the Manager of Canara Bank, Sampaje, wherein the cheque was presented for encashment by the complainant. The said endorsement is dated 10.06.2013. This document would clearly indicate that the cheque in question was dishonoured on 10.06.2013 and therefore the legal notice issued by the complainant was in accordance with the provisions of Section 138 of N.I. Act.
7. Learned counsel for the respondent is absent. He has not addressed any arguments.
8. The controversy in this case is arisen on account of two different dates appearing on the two memos submitted before the Court. Undeniably, the cheque in question was drawn on Federal Bank. The payee maintained the Account in Canara Bank, Sullia Branch. Therefore, the cheque was sent for collection to the Federal Bank. The said bank has communicated the dishonour of the cheque by returning the intimation to the Canara Bank, Sullia Branch. The said memo does not bear any date. However, at the foot of this memo, the date of return is written as 10.08.2013. But the legal notice issued to the accused calling up him to pay the amount of the cheque is dated 27.06.2013. Taking advantage of this discrepancy, the accused appears to have taken up a plea that the cheque having been returned on 10.8.2013, the complainant could not have issued a legal notice on 27.6.2013. Therefore, it is contended that there was no cause of action for the complainant to initiate the proceeding under Section 138 of N.I. Act.
9. I have verified the documents produced alongwith the petition especially with reference to Exs-P2 and P3. Ex-P2 is the communication addressed by The Federal Bank limited to Canara Bank, Sullia intimating the reason for return of cheque No.1287 for Rs.3,50,000/- The said intimation is dated 10.08.2013; whereas the memo issued by the Canara Bank, Sullia to The Manager, Canara Bank, Sampaje Branch where the complainant maintained the account is dated 10.06.2013. Whether the date shown in Ex-P2 is a mistake could be decided only during trial. Apparently, the legal notice is issued by the complainant based on the dishonour memo issued by the bank in which the cheque was presented by the complainant. It is not the case of the accused that the cheque in question was dishonoured on 10.08.2013. Even accepting for the sake of argument that the said cheque was presented at any time earlier to 10.06.2013, is a matter for evidence. In view of this discrepancy, the complainant may have to examine the officials of Federal Bank, Puttur Branch, Dakshina Kannada to substantiate as to the exact date when the cheque in question was received in Federal Bank and the same was dishonoured by the said bank. Having regard to the fact that two different dates having been mentioned in two documents, without getting the matter clarified, it was not proper on the part of Sessions Court, Puttur, Dakshina Kannada to foreclose the claim of the complainant solely based on Ex-P2. The learned Sessions Judge has not taken into account the memo dated 10.06.2013. In view of discrepancy found in both these documents, in my view, an opportunity is required to be afforded to the complainant to substantiate the exact date of dishonour of the cheque by the Federal Bank Limited. Therefore, the impugned order passed by the learned Sessions Judge cannot be sustained.
Accordingly, the petition is allowed. The order dated 15.07.2015 passed by the learned V Addl. District and Sessions Judge, Dakshina Kannada, Mangalore, sitting at Puttur, Dakshina Kannada in Crl.R.P.No.5007/2015 is hereby quashed. The matter is remitted to the learned Magistrate to proceed in accordance with law by affording suitable opportunity to the petitioner to substantiate the case in accordance with law.
Since the matter is pending since 2012, both the parties are directed to appear before the trial Court on 28.02.2019 without any further notice.
Sd/- JUDGE *mn/-