IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF JULY, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION No. 2077 OF 2016 BETWEEN Gafar Baig S/o late Abdul Baig, Aged about 50 years R/at Doctors Layout, White field Bangalore 560 066. …PETITIONER (By Sri.Nishit Kumar Shetty, Advocate) AND S.M. Srinivas, S/o A Munivenkatappa Aged about 40 years, R/at No.202, 3rd Main Road, M.S. Palya, Bangalore 560 076 … RESPONDENT (By Sri B.G. Sriram, Advocate, (absent)) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 15.04.2014 IN PCR NO.74/2008 MADE BY THE ACJM, BANGALORE AND ALSO ORDER DATED 29.01.2016 MADE IN CRL.RP.NO.15/2014 BY THE PRL. SESSIONS COURT, BANGALORE RURAL DISTRICT, BANGALORE.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Petitioner filed a complaint under Section 200 r/w Section 199 (A) of Cr.P.C. seeking prosecution of respondent for the alleged offences punishable under Sections 379 and 417 of I.P.C.
2. Case of the petitioner/complainant is that on 29.09.2006, while the complainant was on his way to his office, he lost his leather bag which contained few documents, digital diary along with blank cheque bearing No.293959 duly signed by the complainant. Immediately, on 29.9.2007 he lodged a complaint before the Sub-Inspector of Police, Whitefield Police Station and also intimated the bank to stop payment of the above cheque. That being the case, respondent issued a notice to the petitioner herein alleging dishonour of the aforesaid cheque. The petitioner/complainant replied the said notice putting forward the fact that said cheque was lost by him, inspite of which respondent proceeded with the complaint under Section 138 of the Negotiable Instrument Act.
3. Learned Magistrate as well as the Revisional court refused to take cognizance of the alleged offence on the ground that the contention urged by the petitioner is by way of defence which could canvassed by him, in the complaint filed by the respondent herein under Section 138 of the N.I. Act.
4. Learned counsel for the petitioner has produced certified copy of the orders passed by the Addl. Chief Judicial Magistrate, Bengaluru Rural District, Bengaluru, in C.C.No.1220/ 2008 dated 21.02.2017, which discloses that the complaint lodged by the respondent herein against the petitioner under Section 138 of the N.I. Act has been dismissed. In the said order, at para No.13, it is recorded as under:
“ 13…… Ex.P.2 belongs to him and further deposed that the said cheque was missing and he has intimated to the bank and lodged the complaint to the police and further admitted that the signed cheque was stolen and the said fact is not shown in Ex.D.5. He was intimated to the Bank after lodging complaint before the police. He has not shown the Ex.D.7 in respect of lodging of complaint before the police. Ex.D.7 does not bears the signature of bank officer and further admitted that, the Power of Attorney was executed in his name and he was made payment to Jayanna and further admitted that Ex.P.2 bears his signature, Ex.P.9 and 10 contains his signature. Ex.P.11 was executed in his favour and further admitted that as per Ex.P.11, they have received a sum of Rs.45 lakh from him by way of cheque. Further admitted that, the land shown in Ex.P.11 and 17 are one and the same. So the learned counsel for the complainant has made cross-examination at length, nothing is elicited from the mouth of witness to prove the transaction between the complainant and the accused.”
5. Further the learned Magistrate in the aforesaid order had observed that in respect of the alleged transaction a suit was pending in O.S.No.888/2004 and in the said suit respondent herein admitted that he received Rs.8 lakh from Manjula by way of D.D. The document was marked as Ex.D.2. It is submitted that the orders passed by the learned Addl. Chief Judicial Magistrate, Bengaluru Rural District, Bengaluru in C.C.NO.1220/2008 has attained finality and no further appeal is filed or pending against the said order.
6. From the said order, it is clear that right from the inception, petitioner herein has taken up a specific plea that the cheque in question was lost and he promptly lodged a police complaint and also intimated the banker to stop payment of the said cheque. This plea has been substantiated in C.C.No.1220/2008, which indicates that prima facie material is available to show that a cheque belonging to the petitioner was lost and the same has been misused to lay a claim against the petitioner. In the wake of this material, courts below were not justified in refusing to take cognizance of the alleged offences.
In that view of the matter, impugned order dated 15.04.2014 passed in PCR No.74/2008 by the learned Magistrate and order dated 29.01.2016 passed in Crl. Revision Petition No.15/2014 by the learned Prl. Sessions Judge, Bengaluru Rural District, Bengaluru are liable to be quashed.
Accordingly, petition is allowed. Impugned orders dated 15.4.2014 and 29.01.2016 are quashed. The matter is remitted to the learned Addl. Chief Judicial Magistrate, Bengaluru District to proceed in the matter in accordance with law in the light of the observations made in this order.
Sd/- JUDGE psg*