IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF JULY 2019 BEFORE THE HON’BLE MR. JUSTICE P.S. DINESH KUMAR CRIMINAL PETITION NO.8010/2018 BETWEEN:
1. MR.AVINASH MOHANTY, DIRECTOR, M/S. AMARE LIFESTYLE PVT LTD., G3, SHILPITA CASCADE, 6TH CROSS, BALAJI LAYOUT, KAGGADASAPURA, C.V.RAMAN NAGAR, BANGALORE-560 093.
ALSO AT SHREEVIHAR COLONY, TULSIPUR, CUTTACK, ORISSA-753 008.
2. M/S. AMARE LIFESTYLE PRIVATE LTD, 35/8, KAGGADASAPURA MAIN RD, AISHWARYA LAKE VIEW RESIDENCY, BALAJI LAYOUT, KAGGADASAPURA, BENGLAURU, KARNATAKA-560 093. ALSO AT SHREEVIHAR COLONY, TULSIPUR, CUTTACK, ORISSA-753 008. …PETITIONERS (BY SRI.: GURU PRASANNA.S, ADVOCATE) AND:
M/S INDUSTREE PRODUCER TRANSFORM PRIVATE LTD, SY NO.36/5, SOMANASUNDARAPALYA, HSR LAYOUT, SECTOR-II, BANGALORE-560 102.
REPRESENTED BY AUTHORISED PERSON MR.RAGHAVENDRA KOTEMANE. ... RESPONDENT (BY SRI.: GUNASHEKAR S ) THIS CRL.PETITION IS FILED U/S.482 CR.P.C PRAYING THAT THIS HON'BLE COURT MAY KINDLY BE PLEASED TO SET ASIDE THE ORDER DATED 28.04.2018 PASSED BY THE XLII ADDL.C.M.M., BENGALURU (ANNEXURE-A) TAKING COGNIZANCE OF THE COMPLAINT IN P.C.R.NO.6004/2018 FILED BY THE RESPONDENT AND QUASH THE ENTIRE PROCEEDINGS IN C.C.NO.10791/2018 PENDING ON THE FILE OF XLII ADDL.C.M.M., BENGALURU.
THIS CRL. PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER M/s Industree Producer Transform Private Limited filed a private complaint against the accused –M/s Amare Lifestyle Private Ltd., and two of its Directors registered as PCR No.6004/2018 before the XLII Addl.Chief Metropolitan Magistrate, Bengaluru alleging commission of offences under Section 138 of Negotiable Instruments Act. The Board of Directors who are accused Nos. 2 and 3 have come up in this petition.
2. Shri. Guruprasanna, learned counsel for the petitioners submits that accused company had issued two cheques bearing Nos.723651 and 723652 both dated 30.11.2017 drawn on State Bank of India, Cuttack. Accused company received notice dated 02.02.2018 from the complainant company stating that the aforesaid cheques were dishonoured as per Banker’s memo dated 22.01.2018. Accused company transferred Rs.4 lakhs by way of RTGS on 16.02.2018 and the same was intimated to the complainant company and its Director Neelam Chibbar by letter dated 16.02.2018.
3. Notwithstanding receipt of sum of Rs.4 lakhs payable under two dishonoured cheques, complainant filed the instant complaint.
4. Learned counsel submitted that 16 documents have been annexed to the complaint. Document No.31 (Sl.No.13) is the letter written by the accused company to the complainant intimating about transfer of Rs.4 lakhs through RTGS. Document No.32 (Sl.No.14) is the letter written by an advocate on behalf of complainant’s company calling upon the accused to pay the outstanding amount of Rs.29,33,907/-. Learned counsel further submitted that in the said letter written by the advocate, receipt of Rs.4 lakhs has been admitted. It is also mentioned in the said letter that complainant would continue to pursue criminal complaint under Section 138 of N.I. Act.
5. With the above facts, learned advocate for the petitioners argued that complainant has initiated criminal proceedings after receipt of the amount in time. Therefore, there was no offence which could have been brought to the notice of the Court against petitioners. Accordingly, he prayed for allowing of this petition.
6. Learned counsel for the complainant urged the following grounds:
that the complainant supports an NGO;
complainant is yet to receive Rs.30 lakhs which is due and payable from the accused; and the complainant was justified in prosecuting the accused based on the dishounoured cheques.
7. I have carefully considered rival contentions and perused the records.
8. Admittedly, notice of dishonour of cheques was given on 02.02.2018. Amount of Rs.4 lakhs was transferred on 16.02.2018 by RTGS and it was communicated to the complainant through letter dated 16.02.2018. Copy of the same has been annexed by the complainant along with the complaint before the learned Magistrate. By letter dated 17.02.2018 written by an advocate on behalf of the complainant-company, it is stated that the complainant would continue to take action in respect of the dishonoured cheques. This is not only abuse of process of law, but regrettable because letter dated 17.2.2018 has been written by an advocate. The said letter records receipt of the sum of Rs.4 lakhs through RTGS by the complainant.
9. No penal action contemplated under Section 138 of N.I.Act would attract if the drawer of the cheque makes payment of amount due to the payee within 15 days of receipt of the notice. Admittedly, amount has been paid within 14 days. Therefore, the proceedings initiated against the accused are clearly amount to abuse of process of law. This kind of prosecution has to be curbed.
10. In the circumstances, this petition merits consideration and hence, the following:
ORDER i) The petition is allowed;
ii) Proceedings in C.C.No.10791/2018 on the file of XLII Addl. Chief Metropolitan Magistrate, Bengaluru are quashed; and iii) Respondent - complainant shall pay cost of Rs.10,000/- to each petitioner.
Sd/- JUDGE ln.