IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF FEBRUARY, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION No.5669 OF 2015 BETWEEN:
DINESH. R S/O. SRI. RAMACHANDRA B., AGED ABOUT 38 YEARS R/O. NO.422, 80 FEET ROAD, 6TH BLOCK, KORAMANGALA, BANGALORE – 560 095 …PETITIONER (BY SRI. BHARATH KUMAR. V, ADVOCATE) AND:
1 STATE OF KARNATAKA THROUGH STATION HOUSE OFFICER SANJAYNAGAR POLICE STATION BANGALORE – 560 094 REP. BY THE STATE PUBLIC PROSECUTOR, HON’BLE HIGH COURT OF KARNATAKA BANGALORE – 560 001 2 ASSISTANT COMMISSIONER OF POLICE CITY CRIME BRANCH WOMEN AND NARCOTICS SQUAD CHAMARAJPET BANGALORE – 560 018 REP. BY THE STATE PUBLIC PROSECUTOR HON’BLE HIGH COURT OF KARNATAKA BANGALORE – 560 001 3 VIJAY S. KASHAPPANAVAR S/O. LATE SRI. SHIVASHANKAR KASHAPPANNAVAR AGED ABOUT 43 YEARS R/O. NO.35, I MAIN, 3RD CROSS, SANJAYNAGAR BANGALORE – 560 094 ...RESPONDENTS (BY SRI. I.S PRAMOD CHANDRA, SPP-II FOR R1 & R2; SRI. SATISH G. RAIKAR, ADVOCATE FOR R3 - ABSENT) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C. PRAYING TO [A] QUASH THE FIR AND INFORMATION BEARING NO.107/2010 DATED 16.4.2010, REGISTERED WITH THE RESPONDENT NO.1 POLICE AND PENDING BEFORE THE IV A.C.M.M., BANGALORE [ANNEXURE-A AND A1] AND ETC.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Heard learned counsel for the petitioner and learned SPP-II for respondent Nos.1 and 2. Learned counsel for respondent No.3 is absent.
2. Petitioner is aggrieved by the order dated 22.09.2014 passed by the learned IV Additional Chief Metropolitan Magistrate, Bangalore, permitting the PSI of Sanjay Nagar Police to re-investigate into the offence in Crime No.107/2010.
3. The brief facts essential for disposal of the petition are as follows:
4. The Respondent No.3 herein availed loan of Rs.32,00,000/- from the petitioner and towards repayment of the said amount, issued a cheque for Rs.32,00,000/-. The said cheque when presented for encashment was dishonoured. Hence, petitioner herein initiated proceedings against Respondent No.3 u/s. 138 of the Negotiable Instruments Act, 1888.
5. After trial, Respondent No.3 was convicted of the said offence in CC No.1342/2010 dated 4.2.2017 and was sentenced to pay fine of Rs.32,50,000/- in default to undergo simple imprisonment for a period of one year. During the pendency of this proceedings, mother of Respondent No.3 filed a complaint before Ilkal Police Station alleging that the cheque in question was obtained by the petitioner under force and misrepresentation and sought action against the petitioner. Ilkal Police conducted investigation and having failed to garner any evidence in support of the accusations filed ‘B’ report. In respect of the very same cheque, Respondent No.3 filed another complaint before Sanjaynagar Police Station, making similar allegations that the cheque in question was taken by the petitioner from the Respondent No.3 by inducement and misrepresentation. Sanjaynagar Police conducted investigation and filed ‘C’ report before the learned IV Additional Chief Metropolitan Magistrate, Bangalore. The order sheet maintained by the said Court in Crime No.107/2010 reveals that ‘C’ report was submitted on 6.6.2013 and the same was accepted by the learned Magistrate on the same day. That being the case, Respondent No.1 moved an application seeking re- investigation into the matter on the ground that ‘C’ report was submitted for want of evidence, but presently, Respondent No.3 has come forward with document to substantiate the accusations. Considering the said request, learned Magistrate has permitted re-investigation into the matter.
6. The above facts clearly indicate that Respondent No.3 intends to prosecute the petitioner for alleged offences punishable under sections 406, 420 and 506 of IPC. A reading of the complaint indicates that the only grievance of the Respondent No.3 is that the cheque in question was taken from him by the petitioner by playing fraud and by misrepresentation. When the claim arising out of said cheque has been adjudicated by the competent court and a finding has been recorded that the cheque in question has been issued by the Respondent No.3 in discharge of the debt legally due by him, Respondent No.3 cannot prosecute the petitioner on the same set of allegations. It is not in dispute that the conviction recorded against Respondent No.3 u/s. 138 of the NI Act has attained finality. The validity of the cheque is proved. In the wake of the said finding, contention urged by the Respondent No.3 that the cheque in question was obtained by playing fraud and misrepresentation is not sustainable, as respondent No.3 is bound by the finding recorded in C.C.No.1342/2010.
7. I have perused the order passed by the XV Additional Chief Metropolitan Magistrate, Bangalore City in C.C. No.1342/2010 arising out of dishonour of the said cheque. In the said proceedings, Respondent No.3 had set up a specific defence that the two cheques given by him to the complainant were by way of security. Respondent No.3 has failed to substantiate the said defence. On the other hand, it is established in evidence that cheques in question were issued by the petitioner, in discharge of the debt due by him. In the wake of this finding, there is absolutely no reason to re-investigate into the matter. The contentions urged by the petitioner are also considered and deemed to have been negatived by the competent criminal court in CC No.1342/2010. Under the said circumstances, further investigation into the same matter would be abuse of process of Court.
For the above reasons, Petition is allowed. The order dated 22.09.2014 passed by the learned IV Additional Chief Metropolitan Magistrate, Bangalore, permitting the PSI of Sanjay Nagar Police to re-investigate into the offence in Crime No.107/2010, is quashed and the proceedings arising out of Crime No.107/2010 are quashed.
Sd/- JUDGE AN/-