IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF MARCH 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.183/2015 BETWEEN:
G.Shivakumar, Aged about 39 years, S/o Gurusiddappa, R/o No.1339/2, Saraswathi Nagara,‘B’ Block, Davanagere-577002. … Petitioner (By Sri.M.R.Hiremathad, Advocate) AND:
M.K.Patresh Gowda, S/o Kallappa, Aged about 41 years, Agriculturist, R/o Medaginakere village, Jagalur Taluk, Davanagere District – 577528. ….Respondent (By Sri.B.Chandramouli, Advocate - absent) This criminal petition is filed u/s.482 of Cr.P.C., praying to quash the order passed in PCR No.33/2014 dated 09/04/2014 on the file of the learned Civil Judge and JMFC Court at Jagalur etc.
This petition coming on for admission this day, the Court made the following;
ORDER Petitioner is aggrieved by the order dated 19/11/2014 whereby the learned Magistrate has dismissed the complaint filed by the petitioner under Section 138 of the Negotiable Instrument Act, (‘Act’ for short) 1881.
2. The order sheet discloses that on presentation of the complaint, the learned Magistrate took cognizance of the offence under Section 138 of the N.I. Act and issued summons to the accused through speed post. The order dated 30/9/2014 reads as follows;
“ The complainant is present and presented this complaint. I have perused the averments of the complaint and documents produced by the complainant. It appears that there is sufficient materials on records. Hence, cognizance taken for alleged offence P/U/Sec. 138 of N.I. Act.
Further, I have carefully perused the averments of complaint, sworn statement, affidavit and basic documents. At this stage, the complainant has established prima facie case against accused. Further, there are sufficient grounds and reasons for proceedings. (This procedure is adopted by this court as per the direction and procedure prescribed by Hon’ble Supreme Court of India in Indian Banks Association & Ors V/s. Union of India & Ors (AIR 2014 SC 2528) In view of above reasons and observations, office is directed to register the case against accused in Register No.III.
Issue summons to accused through speed post. The complaint shall furnish the sufficient process fees and postal cover within 3 days from this order. In case of the complainant has fails to do so, this complaint itself automatically stand dismissed U/Sec.204(A) of Cr.P.C.”
By the said order, the complainant was directed to furnish sufficient process fee and postal cover within 3 days from the date of order and if the complainant failed to do so, it was ordered that the complaint shall automatically stand dismissed under Section 204(4) of Cr.P.C.
4. It is the case of the complainant that the order sheet does not indicate that whether the process fee was paid and the postal covers were furnished by the complainant within 3 days as ordered by the Court. However, on 19/11/2014, the learned Magistrate has passed the order as “ Complaint already dismissed.”
5. In view of the peremptory order dated 30/09/2014, learned Magistrate was required to ascertain as to whether the process fee was paid and whether any summons were issued to the accused. The office note indicates that the matter was posted for service of summons on the accused. In such circumstances, without ascertaining the service or return of the summons, the learned Magistrate ought not to have dismissed the complaint. As a result, the impugned order cannot be sustained.
6. Consequently, the petition is allowed. The impugned order dated 19/09/2014 is quashed. Complaint is restored to file.
Sd/- JUDGE Msu