IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 03RD DAY OF JANUARY 2019 BEFORE THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.2614 OF 2013 BETWEEN:
B K MANJUNATHA S/O KUPPAIAHGOWDA, AGED 48 YEARS, R/O MELINABAISE, KOWRI VILLAGE, YADUR POST, HOSANAGARA TALUK, SHIMOGA DISTRICT-577201.
(BY SRI: B S PRASAD, ADVOCATE) AND:
... PETITIONER 1. STATE BY THIRTHAHALLI POLICE STATION, THIRTHAHALLI, SHIMOGA PIN 577201, REP.BY SPP, HIGH COURT BUILDING, BANGALORE 01 2. SHREENIVASAIAH S/O KALAPPA, AGED ABOUT 56 YEARS, EMPLOYEE IN CANARA BANK, YADUR BRANCH, HOSANAGAR TALUK, PERMANENT R/O REVATHI BUILDING, BALEBAILU EXTENSION, THIRTHAHALLI TOWN, SHIMOGA DISTRICT PIN 577201 3. SMT. SUDHA SHREENIVASAIAH SUBHA W/O SHREENIVASAIAH, AGED 48 YEARS, R/O REVATHI BUILDING, BALEBAILU, THIRTHALLI TOWN PIN 577432 ... RESPONDENTS (BY SRI: I.S.PRAMOD CHANDRA, SPP-II FOR R1 R2 AND R3 SERVED AND UNREPRESENTED) THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO QUASH THE ORDER DATED:16.2.13 PASSED BY THE CIVIL JUDGE AND JMFC, THIRTHAHALLI IN PCR NO.43/10.
THIS CRL.P COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R This petition is posted for admission. Respondent Nos.2 and 3 are duly served, but have remained unrepresented.
I have heard learned counsel for the petitioner and learned SPP-II on behalf of respondent No.1.
2. The petitioner has sought to quash the order dated 16.02.2013 passed by the Civil Judge and JMFC, Thirthahalli in PCR No.43/2010. By the said order, the learned Magistrate has accepted the ‘B’ report filed by the Police and has dismissed the private complaint filed by the petitioner herein.
3. The petitioner herein filed a complaint under Section 200 Cr.P.C. against respondent Nos.2 and 3 seeking action against them for the offences under Sections 138 and 142 of N.I. Act and Sections 420, 464, 465, 467, 468, 469 and 471 of Indian Penal Code for the dishonour of the cheque issued. According to the complainant, respondent No.2/accused No.1 had taken a hand loan of Rs.1,75,000/- from him at Yadur village in the second week of September 2009 and in repayment thereof, accused No.1 gave a cheque belonging to accused No.2 for Rs.1,75,000/-. The said cheque when presented for encashment was dishonoured.
4. The complaint was referred to respondent No.1 herein for investigation. After investigation, respondent No.1 filed a ‘B’ report. The petitioner/complainant filed a protest petition and in support thereof adduced his evidence and also examined one more witness and produced in evidence 10 documents. On considering the contents of ‘B’ report, by the impugned order, the learned Magistrate dismissed the complaint. In the impugned order, the learned Magistrate has held that, during the course of investigation, the investigating officer had collected an application written by accused No.2, who is the wife of accused No.1 addressed to the Manager, Canara Bank, Yadur Branch intimating loss of cheque books pertaining to S.B. Account No.5874. The said application was given to the Canara Bank on 20.03.2007, whereas the cheque in question is dated 18.01.2010 and hence, the trial court was of the opinion that the case set up by the complainant is false and the cheque in question is manipulated.
5. Learned counsel for the petitioner submits that in the complaint itself, it is stated that after dishonour of the cheque, the complainant made necessary enquiries with the banker as to the maintenance of the account, but, he was not informed of any such application having been issued by accused No.2 about the loss of cheque books. Further, he submitted that the endorsement issued by the bank does not mention about any loss of cheque, instead, said endorsement is to the effect that there was no sufficient funds at the credit of accused No.1 and the signature found on the impugned cheque differed. It is the further submission of the learned counsel that accused No.1-an employee of the Canara Bank working in the same Branch and by using his position, got up the said application so as to defeat the claim of the petitioner/complainant. Under the said circumstances, without affording an opportunity to the complainant to substantiate the veracity of the said application, which has been produced along with the ‘B’ report, the trial court ought not to have dismissed the complaint.
6. I find sufficient force and merit in the submission of the learned counsel for the petitioner. Undisputedly, the cheque in question was dishonoured for ‘insufficient funds’ and not on account of theft of cheque as contended by the accused. If infact the banker had received an application from the Account Holder about the loss of cheque leaves, an endorsement ought to have been issued by the banker to that effect and in all likelihood the banker would have withheld the passing of the cheque, instead of issuing an endorsement to the effect that accused No.1 did not have sufficient funds to his credit. Further, the specific case of the complainant is that the cheque in question was drawn by accused No.1 and not by accused No.2. Under the said circumstances, application if any, given by the wife of accused No.1 regarding loss of cheque leaves does not assume any significance. If the account was maintained by accused No.2 and the cheque was drawn by accused No.1 as stated in the complaint, the banker was not required to honour the application issued by accused No.2 regarding loss of cheque books. In any case, the very nature of the defence set up by the accused required him to substantiate the said defence during trial. Under the said circumstances, merely on the basis of a document styled as ‘application’ submitted by the wife of the accused No.1, the authenticity of which is under cloud, the trial court could not have come to the conclusion that the cheque leaves which were lost much earlier to the lodging of the complaint were made use by the complainant to foist a claim against the accused. In that view of the matter, the impugned order, cannot be sustained.
7. The plea set up by the accused is in the nature of defence. The document introduced by the accused in the police papers is required to be proved in accordance with law.
8. Having regard to the contentions urged in the complaint and the documents relied on by the accused as well as the plea set up by the accused persons regarding loss of cheque books, the matter requires to be adjudicated and tried by the Court. Therefore, the order passed by the learned Magistrate accepting ‘B’ report cannot be sustained.
Accordingly, the petition is allowed. The impugned order dated 16.02.2013 is set aside. The complaint filed by the petitioner under Section 200 Cr.P.C. is restored to file. The trial court shall issue summons to the accused persons and shall proceed thereafter in accordance with law.
Sd/- JUDGE *mn/-